UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


p.- 


i/J. 


^"^^Z-  ^-"^c^ 


"^-s^ 


CASES 

ON 

LEGAL  LIABILITY 


BY 

JOSEPH  HENRY  BEALE 

ROYALL  PROFESSOR  OF  LAW   IN   HARVARD   UNIVERSITY 


CAMBRIDGE 

HARVARD  UNIVERSITY  PRESS 

1915 


T 


Copyright,  1914,  1915, 
By  Joseph  Henry  Beale 


THE    UNIVERSITT    PRESS,  CAMBRIDGE,  MASS.,  U.S.A. 


TO 
JEREMIAH  SMITH 


PREFACE. 


The  subject  of  the  present  collection  is  that  body  of  legal  prin- 
ciples which  determines  whether  one  may  be  charged  with  the 
consequences  of  his  act.  Not  all  the  requisites  of  ultimate 
liability  are  here  considered;  the  element  of  blame  is  not  treated. 
It  is  left  for  a  more  particular  study  of  the  law  of  Torts  to  de- 
termine what  degree  of  intention,  malice  or  negligence  must  exist 
before  one  may  be  forced  to  make  compensation  for  a  wrong; 
and  for  a  study  of  Criminal  Law  to  determine  how  far  a  guilty 
mind  is  requisite  before  punishment  can  be  inflicted.  The  topics 
here  considered  are  those  fundamental  ones  which  are  a  common 
element  of  torts  and  crimes;  and  the  object  of  this  collection  is  to 
prevent  that  duplication  of  effort  which  has  heretofore  existed 
through  the  attempt  to  include  instruction  in  these  topics  in  courses 
on  Torts  and  on  Criminal  Law. 

The  editor  can  claim  little  credit  for  the  selection  of  the  cases 
here  collected.  Most  of  the  civil  cases  on  Causation  have  been 
found  in  Judge  Smith's  Cases  on  Torts,  and  in  the  notes  to  his 
illuminating  articles  on  Legal  Cause  (Harvard  Law  Review,  vol. 
XXV,  pp.  103,  223,  303).  INIost  of  the  civil  cases  on  Permitted  Acts 
have  been  found  in  the  text  and  notes  of  Ames's  Cases  on  Torts. 
Most  of  the  criminal  cases  have  been  taken  from  the  second  edi- 
tion of  the  present  editor's  Cases  on  Criminal  Law. 

J.  H.  BEALE. 
Cambridge,  December  1,  1914. 


TABLE  OF  CONTENTS. 


PAGE 

Chapter  I.    Law 1 

Chapter  II.    Liability  based  upon  Act. 

Section      I.    Nature  of  an  Act 38 

Section    II.    Omission  as  an  Act 44 

Section  III.    Causation  of  Injury 69 

Section  IV.    Proximity  or  Remoteness  of  Injury 87 

Chapter  III.    Liability  based  on  Proxiil\te  Causation. 

Section      I.    Direct  Application  of  Force 103 

Section    II.    Interposition  of  a  Natural  Force 149 

Section  III.    Interposition  of  the  Act  of  an  Animal 184 

Section   IV.    Interposition  of  an  Act  of  the  Injured  Individual     .    .  216 

Section     V.    Interposition  of  an  Act  of  a  Third  Party 279 

Chapter  IV.    Liability  Irrespective  of  Proxhl^te  Causation.  -,^ 

Section      I.    Respondeat  Superior 498  \ 

Section    II.    Liability  for  Animals 515  ^ 

Section  III.    The  "Civil  Damage"  Act      525    '- 

Section  IV.    Workmen's  Compensation  Acts 543/ 

Ch.\pter  V.    Permitted  Acts. 

Section      I.    Duty  to  Act 572 

Section    II.    Authority  to  Act 591 

Section  III.    Privilege  to  Act 659 

Section  IV.    Protection  from  Consequences  of  Permitted  Acts     .    .  780 

Section     V.    Action  in  Pursuance  of  Permission 801 

Section  VI.    Action  under  Mistake  as  to  Permission 807 


t  1  '^ 


/  V 


TABLE  OF  CASES. 


Page 

Acers  v.  United  States 711 

Allen  V.  Crofoot «^^ 

Anderson  v.  State J^^ 

Andrews  v.  Kinsel      ■■••••     "^^^ 
Anonymous  (Lib.  Assis.  287)    ...       «5?5 

(Kelyng,  58) 

(21  Hen.  VIL  39) 

Armstrong  v.  Montgomery  Street 

Railway  Co I'i;^ 

Arpc.  State ^    ^   ■, 

Atchison,  Topeka  &  Santa  Fe  Rail- 

way  Co.  V.  Parry --^ 

Axtell's  Case ^^-^ 

B. 

Bailey  v.  People 742 

Bakker  r.  Welsh ■        ■  6o7 

Balmain   New   Ferry   Co.,  Ltd.  v. 

Robertson 791 

Barfoot  v.  Reynolds '19 

Beard  v.  United  States 707 

Beattie  v.  State 


689 
729 


Page 


Bush  V.  Commonwealth    .....     334 
Butler  V.  Burton-on-Trent  Union   .     544 


61 


6.59 


83 

95 

478 

365 


Beatty  v.  Gillbanks 287 

Belk  V.  People 208 

Bell  V.  Rocheford ;  223 

Bellino  v.  Columbus  Construction 

Co •      .■  435 

Benedict  Pineapple  Co.  v.  Atlantic 

Coast  Line  Railroad  Co 161 

Bennett  i'.  Lockwood    ......  245 

Bentley  v.  Fisher  Lumber  &  Manu- 
facturing Co 308 

Binford  r.  Johnston 363 

Blake  v.  Head 543 

Blankard  v.  Galdy H 

Bloom  V.  Franklin  Life  Insurance 

Co 318 

Boomer  v.  Wilbur 505 

Bosch  V.  Burlington  &  INIo.  River 

Ry.  Co.    .    . 90 

Brown  v.  Cummings 413 

V.  Kendall 780 

Bunting  v.  Hogsett 115 

Burk  V.  Creamery  Package  Manu- 
facturing Co 220 

Burns  v.  Erben 600 

Burrows  v.  March  Gas  Co 401 


Campbell  v.  Race ■ 

Castell,  Widow,  v.  Bambndge  and 

Corbet 

Central  of  Georgia  Ry.  Co.  v.  Price 

Chacey  r.  City  of  Fargo 

Chaddock  r.  Plummer 

Chambers  v.  Carroll 304 

Chappell  r.  Jardine 13 

Chase  v.  Ingalls      813 

Cheeves  v.  Danielly 178 

Clark  V.  Chambers 427 

^-  Gay 96 

V.  Wallace 101 

Clearv  v.  Booth      613 

Clifford  r.  Denver,  South  Park  & 

Pacific  Railroad  Co. 109 

Cole  V.  German  Savings  &  Loan 

Society 387 

Commonwealth  v.  Campbell    .    .    .  322 

V.  Chapman 6 

V.  Churchill 28 

V.  Crotty 812 

V.  Donahue 760 

V.  Dougherty 748 

V.  Drum 704 

T.  Hackett 330 

V.  McAfee 618 

V.  Miller 680 

Connecticut  Tklut.   Life   Insurance 
Co.  V.  New  York  &  New  Haven 

R.  R.  Co _87 

Cooper's  Case ^30 

Cope  V.  Sharpe 755 

Corey  v.  Havener •    •  476 

Creighton  r.  Commonwealth    .    .  714 

Currier  v.  McKee 537 


D. 

Dannenhower  r.  Western  Union  Tel- 
egraph Co 36- 

De  Camp  v.  Sioux  City 458 

Dennison  v.  Van  Wormer     ....     531 


TABLE    OF   CASES, 


Page 
Denny  c.  New  York  Central  R.  R. 

Co.   . 168 

Derry  v.  Flitner ITjS 

Detzur  v.  B.  Stroh  Brewing  Co.  .    .  1.58 

Doll  V.  Ribetti 508 

Donovan's  Case 565 

Dubuque  Wood  &  Coal  Association 

T.  Dubuque 159 

Dugdale  v.  Regina 43 

E. 

Eberhardt  t.  Glasco  Mutual  Tele- 
phone Association 209 

Eckert  v.  Long  Island  Railroad  Co.  255 

Ehrgott  T.  Mayor  of  New  York  .    .  251 

Elder  v.  Morrison 808 

Elliott  V.  Allegheny  County  Light 

Co 97 

E.   T.   &   H.  K.   Ide  v.  Boston   & 

Maine  R.  R.  Co ISO 

Everitt  v.  EastafF  &  Co 545 

F. 

Fairbanks  v.  Kerr 283 

Fertich  v.  Michener 615 

Fields  V.  Stokley 637 

Filburn  v.  People's  Palace  &  Aqua- 
rium Co.,  Ltd.     .    .    ._ 521 

First  National  Bank  c.  Kinner  .    .    .  12 

Flint  V.  Bruce 721 

Fottler  V.  Moseley 443 

Fowles  r.  Briggs      495 

Fox  V.  Boston  &  Maine  R.  R.  Co.   .  170 

G. 

G.  R.  Booth,  The 127 

Gage  V.  Harvey      533 

Gay  V.  State 477 

Gibbons  v.  Pepper 39 

Gilman  v.  Emery 774 

V.  Noyes 186 

Glassey  v.  Worcester  Consolidated 

Street  Railway  Co 360 

Glever  v.  Hynde 626 

Goodwin  v.  Avery      776 

Graves  v.  .Johnson 72 

Gray  v.  Chicago  &  Northwestern 

Railway  Co 105 

Green-Wheeler  Shoe  Co.  v.  Chicago, 

Rock  Island  &  Pacific  Ry.   .    .    .  172 

Guille  V.  Swan 282 

H. 

Handcock  v.  Baker 591 

Hanks  v.  State 24 

Hardiman  v.  WhoUey 523 

Harrison  v.  Berkeley 438 

Harrold  v.  Watney 256 


Page 
Harton  v.  Forest  City  Telephone 

Co 379 

Henderson  v.  Dade  Coal  Co.   .    .    .  343 

Hendrickson  v.  Commonwealth  .  .  268^ 
Henry  v.  St.  Louis,  Kansas  City  & 

Northern  Railway  Co 2.59 

Herberd's  Case 573 

Herd   v.   Weardale  Steel,   Coal   & 

Coke  Co.,  Ltd 796 

Heritage  v.  Dodge 616 

Hern  v.  Nichols      498 

Higgins  V.  Minaghan 750 

V.  Watervliet  Turnpike  Co.  .    .  501 

Hill  V.  Winsor 122 

Hodgeden  v.  Hubbard 762 

Hollenbeck  v.  .Johnson 92 

Hollidge  V.  Duncan 377 

Howland  v.  Blake  Manufacturing 

Co 645 

Hoyt  V.  Jeffers 138 

HuUinger  v.  Worrell 347 

Hunt  V.  Caskey 741 

I. 

Illinois  Central  Railroad  Co.  v.  Siler  247 

Isham  v.  Dow 212 

-J. 

Jackson  v.  Wisconsin  Telephone  Co.  155 
Jacobs  V.  New  York,  New  Haven  & 

Hartford  Railroad  Co 374 

.Jeffries  v.  Hargis 816 

Johnson  v.  Northwestern  Telephone 

Exchange  Co 306 

Jones  V.  Boyce 237 

K. 

Keaton  t.  State      339 

Keleher  v.  Putnam 636 

Kelsey  v.  Rebuzzini 197 

King    V.    Interstate    Consolidated 

Street  Railway  Co 62 

King's  Prerogative  in  Saltpetre  .    .  622 

Krach  v.  Heilman 525 

Kuhn  V.  Jewett 144 

L. 

Lake  County  r.  Rollins 27 

Lane  r.  Atlantic  Works 355 

Langbridge's  Case 1 

Lawton  v.  Steele 21 

Lee  V.  Bude  and  Torrington  Junc- 
tion Ry 22 

Livingston  v.  Commonwealth      .    .  75 

Locke  V.  Stearns 498 

Lords- Jurats  of  Romney  Marsh,  The 
V.  The  Corporation  of  the  Trinity 

House 125 

Louisville  v.  Hart 467 


TABLE   OF   CASES. 


XI 


Page 

Lowenberg  v.  Rosenthal 816 

Lowery  v.  Manhattan  Railway  Co.  486 
Lynn  Gas  &  Electric  Co.  v.  Meriden 

Insurance  Co HI 

Lyons  v.  Merrick 515 

M. 

McCahill  T.  New  York  Transporta- 
tion Co.   .    .    .    ; 107 

McDonald  v.  Snelling 201 

Mclntire  v.  Roberts 455 

McKennon  v.  Winn 19 

M'Lauchlan  v.  Anderson      ....  547 

McLeod  V.  Jones 765 

McNicol's  Case 563 

Mangan  v.  Atterton 354 

Markley  v.  Whitman 649 

Mars  V.  Delaware  &  Hudson  Canal 

Co 445 

Marsh  v.  Giles 99 

Martin  v.  J.  Lovibond  &  Sons,  Ltd.  561 

Mead  v.  Stratton 526 

Memorandum  (Y.  B.  43  Edw.  IIL 

33) 44 

(Y.  B.  4  Hen.  VH.  2)    .    .    .    .  686 

(Fitz.  Abr.  Coron.  261)     .    .    .  685 

Miller  v.  Kelly  Coal  Co 147 

Milliken's  Case 567 

Milostan  v.  Chicago 450 

Milwaukee  &  St.  Paul  Railway  Co. 

V.  Kellogg 141 

Miner,  Read  &  Garrette  v.  McNa- 

mara 491 

Minot  V.  Doherty 541 

Mirehouse  v.  Rennell 5 

Mohr  V.  Williams 652 

Mortimer   v.   New  York   Elevated 

Railroad  Co 16 

Moses  V.  Dubois 785 

Munsey  v.  Webb 230 

.  N. 

Nesbett  v.  Wilbur      775 

Neu  V.  McKechnie 530 

Note  (Y.  B.  21  Edw.  in.  17)     .    .    .  684 

(43  Lib.  Assis.  31) 685 

(Fitz.  Abr.  Coron.  361)     ...  684 

O. 

O'Brien  v.  Cunard  Steamship  Co.    .  642 
Ollet  V.  Pittsburg,  Cincinnati,  Chi- 
cago &  St.  Louis  Railway  Co.    .    .  651 
Olson  V.  Gill  Home  Investment  Co.  370 
Oxley  V.  Watts   .........  804 

Oystead  v.  Shed 577 

P. 

Page  V.  Bucksport 245 

Pastene  v.  Adams 479 


Page 

Paul  T.  Summerhayes 634 

People  ?j.  Ah  Fat 79 

V.  Beardsley 65 

V.  Button     : 698 

V.  Cook 333,  727 

V.  Detroit  WTiite  Lead  Works    .  678 

T.  Fitzgerald 580 

T.  Lewis 275 

V.  Taylor 625 

T.  Warren 576 

Pittsburg  Reduction  Co.  t.  Horton  367 
Plumb  V.  Cobden  Flour  Mills  Co., 

Ltd 548 

Ponrl  V.  People 595 

Pooler  v.  Reed 815 

Prior  of  Lewis  v.  Bishop  of  Ely  .    .  1 

Proctor  V.  Adams 630 

Pullman  Palace  Car  Co.  v.  Bluhm    .  326 

Putnam  v.  PajTie 627 

Q. 

Quaker  Oats  Co.  v.  Grice     ....  402 

Queen  v.  Jackson 619 

Quigley    t.  •  Delaware    &    Hudson 

Canal  Co 301 

R. 

Reeder  r.  Purdy 736 

Regina  D.  Bennett 118 

v.  Conde 47 

V.  Dadson 801 

v.  Dalloway 271 

V.  Davis 473 

V.  Downes 51 

V.  Dudley 664 

V.  Fretwell 73 

r.  Greenwood 84 

■  T.  Griffin      612 

T.  Haines 472 

V.  Hallidav 279 

V.  Hewlett 689 

v.  Holland 265 

V.  Instan      54 

r.  Jackson 619 

T.  Lesley 789 

V.  Lowe 46 

r.  Martin 238 

T.  Mitchell 295 

v.  Morbv 80 

V.  Murphy 599 

v.  Norris Ill 

T.  Pitts 236 

r.  Randall 683 

V.  Rose 720 

v.  Smith 47 

V.  Towers 84 

V.  White 48 

Respublica  v.  McCarty 672 

Rex  V.  Compton 572 

V.  Crutchley 671 


Xll 


TABLE    OF   CASES. 


Page 

Rex  V.  De  Marny 216 

V.  Friend      45 

V.  Gill 87 

V.  Heath 42 

7).  McDaniel 296 

v.  Pittwood 57 

T.  Robert  of  Herthale    ....  684 

V.  Smith 595 

v.  Squire 44 

V.  Sutton 40 

Ricker  v.  Freeman 314 

Rigdon    V.    Temple    Water    Works 

Co 124 

Roach  V.  Kelly 536 

Rollins    V.    Central    Elaine    Power 

Co 232 

Rowe  V.  United  States 690 

Ryan  v.  New  York  Central  R.  R. 

Co 129 

S. 

St.  Louis,  Iron  Mountain  &  South- 
ern Railway  r.  Taylor 31 

St.  Louis  &  San  Francisco  R.  R. 

Co.  V.  League 266 

Salisbury  r.  Green 769 

Samuel  v.  Payne 807 

Sauter  v.  New  York  Central  &  Hud- 
son River  R.  R.  Co 327 

Scanlon  r.  Wedger 644 

Scheflfer  v.  Washington  City,  Vir- 
ginia ]Midland,  &  Great  Southern 

R.  R.  Co 272 

Schoepflin  r.  Coffey 297 

Schoultz  V.  Eckhardt  Manufactur- 
ing Co 233 

Schwartz  v.  California  Gas  &  Elec- 
tric Corporation 422 

Scott  V.  Hunter 149 

r.  Shepherd 309 

Seavey  v.  Preble 632 

Seith  V.  Commonwealth  Electric  Co.  415 

Shinglemeyer  r.  Wright 646 

Shorter  i'.  People 817 

Si.x  Carpenters'  Case 803 

Smith  V.  Fife  Coal  Co.,  Ltd.    .    .    .  559 
T.  London  &:  Southwestern  Ry. 

Co 133 

Sneesbv  v.  Lancashire  &  Yorkshire 

Ry.  Co 1S4 

Snow  V.  New  York,  Xew  Haven  & 

Hartford  R.  R.  Co.    .....    .  263 

South  Side  Passenger  Railway  Co. 

t.  Trich 351 

Southern  Railway  Co.  v.  Webb  .    .  479 

Sowles  r  ^loore 69 

State  V.  Donnelly 705 

T.  Evans 713 

r.  Gut 641 

T.  Knight 23 

('.  Knoxville 578 


Page 

State  V.  Melton 728 

V.  O'Brien 103 

T.  Scates 77 

V.  Sherman      716 

V.  Patterson 731 

V.  Wood 457 

r.  Wrav 624 

Stoffer  V.  State .    .  694 

Stone  T.  Boston  &  Albany  Railroad 

Co 407 

Storey  v.  State 603 

Strang  v.  Russell 802 

Sullivan  v.  Old  Colony  Railroad  .    .  740 

Sundine's  Case 569 

Surocco  t.  Geary 628 

T. 

Teis  V.  Smuggler  Mining  Co.  .  .  .  396 
Texas  &  New  Orleans  R.  R.  Co.  v. 

Bellar  .    .^ 182 

Thomas  v.  Kinkead 607 

Thompson  v.  Louis\'ille  &  Nashville 

Railroad  Co 336 

Thubron  v.  Dravo  Contracting  Co.  348 

Tillman  v.  Beard 602 

Tinkle  v.  Dunivant 621 

Tompkins  r.  Knut 722 

Towaliger  Falls  Power  Co.  v.  Sims  215 
Trim  Joint  District  School  Board 

Management  v.  Kelly 553 

Tuck  V.  Beliles 574 

Turner  v.  Page 386 

Tuttle  V.  Atlantic  City  Raih-oad  Co.  241 

U. 

Uhlein  v.  Cromack 718 

United  States  v.  Clark 584 

V.  Jones 677 

V.  Wiltberger 35 

V. 

Vandine,  Petr 32 

Vicars  v.  Wilcox 300 

Vincent  v.  Lake  Erie  Transporta- 
tion Co 770 

Vosburg  V.  Putney 648 

Vredenburg  v.  Behan 517 

W. 

Washington  &  Georgetown  Railroad 

Co.  r.  Hickey .  460 

Watson    V.    Kentucky    &    Indiana 
Bridge    &    Railroad 

Co 404 

V.  State 811 

West  r.  Ward 195 

Wilder  i-.  Stanley 384 


TABLE    OF   CASES. 


XUl 


Page 

Wild's  Case 730 

Williams  v.  Brennan 524 

Wineberg  v.  DuBois  Borough  ...  98 

Wise  V.  Dunning 290 

Wood  V.  Pennsylvania  R.  R.  Co.  .    .  119 

r.  State 724 


Woodson    V.    Metropolitan    Street 
Railway  Co 225 


Yoder  v.  Yoder 741 


THE    PRINCIPLES    OF    LIABILITY 

The  following  cases  will  be  taken  up  in  Class  : 
Chapter  II.     Section  1.     Pages  38  to  43. 
Section  2.     Pages  44  to  69. 
Cases  will  then  be  taken  up  in  the  following  order: 

^     t*  "I-   Causation  of  Injury 

■   1.    Sowles  V.  Moore,  page  69.  * 
'  2.   Livingston  v.  Com.,  7-5^ 
,  3.    State  V.  Scates,  777       '■•'  ^^ 

Read:  People  v.  Ah  Fat,  79.    '^ 
•4.    Regina  v.  Towers,  84. 

Read :  Castell  v.  Bambridge,  8^     '  ^ 

II.  Remoteness 
5,   Rex  V.  Gill,  8fr 

.  6.   Central  Ry.  v.  Price,  95:'     . 
Read:  Boseh  y.  Ry.,  90. 

Hollenbeck  i\  Johnson,  92» 
Clark  V.  Gay,  96. 
Elliott  V,  Allegheny  Co.,  97.    i^ 
Clark  p.  Wallace,  101. 

III.  Proximity 

1 .   No  intervening  force 

•  7.   State  V.  O'Brien,  103?         7  .? 

•  8.   Armstrong  v.  Montgomery  Ry.,  W^     "7  <? 

Read:  Gray  v.  Ry.,  105. 

McCahill  y.  Transp.  Co.,  107. 
9.    Lynn  Gas  Co.  v.  Meriden  Ins.  Co.,  411.     9  0 
Read:  R^.  v.  Norris,  111. 

Reg.  V.  Bennett,  118,~ 

10.  Wood  V.  Penn.  R.  R.,  H9-.        '^  '-f 

11.  Hill  V.  Winsor,  122. 

Read:  Rigdon  v.  Temple  W.  W.Co.,  124. 
The  G.  R.  Booth,  127. 

12.  Ryany.  New  York,  R.R.,  "1:30,      S9 

13.  Smith  V.  London  Ry.,  133^.  '*  ""' 

Read:  Hoyt  r.  Jeffers,  138. 

Milwaukee  Ry.  v.  Kellogg,  141;  ^  ^ 

Kuhn  i;.  Jewett,  144.  n%^v 


X 


^ 


'  14.   Reg.  V.  Holland,  26*      I  (>  V 

Read:  St.  Louis  R.  R.  v.  League,  266. 
.15..    Hendrickson  V,  Com.,-968.       '   •    *•■ 
•16.    Fouler  ?;.  Moseley,44»,  Z '-''  '^ 

2.   Intervening  force  caused  by  first  force 

17.  Rex  V.  De  Marny,  -8-167    \  v'J  ^ 

18.  Guille  V.  Swan,  282.  I  0  a 

Read:  Fairbanks  v.  Kerr,  283. 
Rex  V.  McDaniel,  296. 
Reg-.  V.  Halliday,  279.   ^ 
'19.   Beatty  ?;.  Gillbanks^ag?-.         «.  ^* 

20.  Wise  V.  Dunning,  290.  "^  3  (i, 

21.  Scheffer  v.  Washington  R.  R.,  ^f^    «f  ^ 

22.  Jones  v.  Boyce,  887.     '  •''    ■ 

Read:  Reg.  i;.  Pitts,  236, 

Reg.  V.  Martin,  238.        ^^ 
THt4le  i).  Atlantic  R.  R.,  241. 

23.  Scott  V.  Shepherd,  309:      " 

Read:  Rieker  v.  Freeman,  314. 

24.  Bennett  v.  Lockwood,  245. 

Read:>Fagei>.  Bvicksport,  245r" 

IlUnois  R.  R.  v.  Siler,-847.    \   {   (j, 

25.  Ehrgott  v.  New  York,«5dl.  )  V  O 

26.  Bentley  v.  Fisher  Co.,  80»r  '%^  ^ 

Read:  Johnson  r.  North wester»4?.ft.r,  3Qfi, 

27.  Clark  I'.  Chambers,  4^.       !    /■    ■ 

Read :  Hai4©»-t^r4iVG.  T.  Co,,  379. 

28.  Burrows  v.  March  Gas  Co.,  4mrr'4"^      -w  Vg^ 

Bead:  Btwting-T.  Hog^ett,  115: 

29.  Pulhnan  Co.  v.  Bluhm,-e26r.  1  -3  T 

Re»d:  Sauter  v.  New  York  R.  R.,  &2f .     /  3^' 

30.  Com.  V.  Hackett,"8S0i  '  ^  ^  . 

Read :  Peo.  v.  Cook,  333.     /  ^  /     r^ '  -^j 

31.  Bushy.  Com.,  334. 

32.  Eckert  v.  Long  Island  Co..  2&5.  /  V  7 

33.  Turner  y.  Page, -386.  /" 

Read:  Wilder  r.  Stanley,  384. 

Teis  V.  v^mnggler  Co.,  397. 

34.  People  v.  Lewis,  275.         :   , 

35.  Bloom  V.  Franklin  Co.,  **8.    I  *">  P 

36.  Com.  V.  Campbell,  3^.  '  -  '/ 

Read  r  Keaton  v.  State-,'399'. 


3.   Intervening  force  risked  as  result  of  first  force 

'  37.    Romney  Marsh  v.  Trinity  House,  15^     1-  'i-  '-^ 
.  38.    Derry  v.  Flitner,  t&8.      '■  7  '- 
Read :  Scott  v.  Hrmter,  149. 

•  39.   Benedict  Pineapple  Co.  v.  Atlantic  R.  R.,  161.     '^  ">  / 
•   40.   Jackson  v.  Wisconsin  Co.,  1^.    /  7  ^ 

Read:  Detzer  w.  Brerring  Co.,  158. 

Eiwbuque  Assoc,  v.  Dubuque,  159. 
Giie©v©s~4^  Danielly,  178. 

•  41.    Uev.  Boston  R.  R.,  180. 

.  42.    Oilman  v.  Noyes,4«S-  ^^^        /  t»  V 

Read:  Sn^esby  y.  Lancashire^ Ry.,i84.- 
.  43.   Kelsey  v.  Rebuzzini,  t97.  y  ' 
.  44.   Weflt^.-WaTd,-i^&: 

•  45.   McDonald  v.  Snelling,  aOl*.   "a**/  / 

Read:  »B.©lk.-»r~People7-ge8.  - 
.46.  Eberhardt  v.  Glasco  Assoc,  209. 
'  47.    Isham  v.  Dow,  2t2.      .' 

Read:  Towatiger  Co.  v.  Sims,  ^1^    ^^i>  i 
South  Side  Ry.  v.  Trich,  35i.    -2L*-r':^- 
Tfeubron  v.  Dravo  Co.,  348. 

48.  Burk  v.  Creamery  Co.,  2^.    j  7  "/ 

49.  Bell  V.  Rocheford,'3^.  <  ^  O 

Read:  Wo(Tds6iil;.'lVretropolitan  Ry.,  225. 
RoUiftS  tr.  Central  Co.,  232. 
Pastene  v.  Adams,  479. 

•  50.   Atchison  Ry.  v.  Parry,  228.      •   '   ^ 

Read:  Southern  Ry.  v.  Webb,  479. 
--  51.   Munsey  v.  Webb,  230. 

•  52.   Henry  v.  St.  Louis  Ry.,  259;    '^ 

•  53.   Snow  i'.  New  York  R.  R.,  263. 

Read :  Wineberg  v.  Du  Bois,  98. 

•  54.  Reg.  V.  Mitchell,  295.  ;  -  — 
•55.  Schoepflin  y.  Coffey,  297.  >  -  ^ 
.  56.   Quaker  Oats  Co.  v.  Grice,  402. 

'  57.  Stone  v.  Boston  R.  R.,  407:    *l^(^'^ 
Read:  Texas  R.  R.  v.  BelkM^i-SS-.^ 

•  58.  BiiowB-*-.-Gttmmings,  413. 

•  59.  Schwartz  v.  California  Corp.,  422;  10-7 
-  60.  Bellino  v.  Columbus  Co.,  496.     30  V« 

•  61.  Fowles  V.  Briggs,  495, 

•  62.  Reg.  V.  Haines,  472v 

Read :  Reg.  v.  Davis,  473* 


.    63.    De  Camp  v.  Sioux  City,  459:-    "2^  6  f 
Read:  Louisville  v.  Hart,  467.  lo*7  ^ 

'64.   Washington  R.  R.  2'.  Hickey,  4©^     «-?/ 

.  65.   Mangan  v.  Atterton,  354. 

Read:  H-airold  tn  Watney,  256. 

•  66.    Lane  v.  Atlantic  Works,  855. 

Read:  Glassey  v.  Worcester  Ry.,  36©.  "^S"? 
Marsh  v.  Giles,  99. 

•  67.    Binford  v.  Johnston,  363.  :  B  7 

.  68.    Chaddock  v.  Plummer,  306. «  g  f 

•  69.    Pittsburg  Co.  v.  Horton,  d&f.\^  I 
.70.    Olson  V.  Gill  Co.,  970.      \^4 

Read:  Jacobs  v.  New  York  R.  R.,  374. 
'  7L    Harrison  v.  Berkeley,  438.    '    '    ' 

•  72.    Cole  V.  German  Society,  387. 

•  73.   Mars  v.  Delaware  Co.,  445. 

•  74.    Milostan  2'.  Chicago,  454.     >•  5  51 

Read:  Mclntire  v.  Roberts,  456. 
.  75.   Watson  v.  Kentucky  R.  R.,  404.       ^  /  "i 

•  76.    Andrews  v.  Kinsel,  34 L 

Read:  Henderson  v.  Dade  Co.,  343.    /■   '    / 
Hullinger  v.  Worrell,  347. 

•  77.   Seith  v.  Commonwealth  Co.,  415. 

.  78.    Denny  v.  New  York  R.  R.,  1^.  "W  I  ^ 

Read:  Fox  v.  Boston  R.  R.,  1^.  >  >  6 
j5ir.(^79.    Green-Wheeler  Co.  v.  Chicago  Ry.,  1*8.  V>-  ^- 
80.    Graves  v.  Johnson,  72-.     v    '   ^f 

Read:  Reg.  y.  Fretwell,  73.   V   ^  '" 
y^\   Connecticut  Co.  v.  New  York  R.  R.,  87. 


^//  / 


5^^^ 


CASES  ON  LEGAL  LIABILITY. 


CHAPTER   I. 
LAW. 

PRIOR  OF  LEWIS   v.  BISHOP  OF   ELY. 

Common  Bench.     1304. 

{Reported  Year  Book  32  Edw.  /.  31.] 

This  was  a  suit  brought  against  the  defendant  to  test  the  right  of 
appointment  by  the  bishop  to  a  living  which  was  within  the  gift  of  the 
prior.  The  prior  alleged  that  he  had  presented  a  suitable  person  for 
the  living  but  the  bishop  refused  him,  and  appointed  another  person. 

Toutheby  for  the  defendant  alleged  that  the  person  presented  was  an 
unsuitable  person  for  three  reasons  stated  by  him.^ 

Herle  for  the  plaintiff.  He  presented  a  suitable  person  ready  &c. 
where  and  when  &c.  But  consider  whether  he  shall  be  received  to 
aver  these  three  causes ;  for  the  judgment  to  be  by  j^ou  now  given  will 
be  hereafter  an  authority  in  every  Quare  non  admislt  in  England. 


LANGBRIDGE'S   CASE. 
Common  Bench.     1345. 

[Reported  Year  Book  19  Edw.  III.  375.] 

This  was  a  suit  to  recover  land.  The  party  defendant  (called  the 
tenant)  made  default ;  whereupon  Langbridge  prayed  that  he  might  be 
admitted  to  defend,  because  the  tenant  had  only  a  life  estate,  and  the 
remainder  was  in  himself.^ 

1  The  statement  of  the  case  has  been  simplified,  and  only  such  portions  of  the  case 
are  given  as  bear  on  the  sources  of  law.  —  Ed. 

1 


2  langbridge's  case.  [chap,  l 

Huse  (for  the  petitioner)  produced  a  deed  showing  the  gift. 

R.  Thorpe  (for  the  demandant).  You  see  plainly  that  his  right  is  not 
proved  by  record  or  b}'  fine,  and  we  cannot  have  any  answer  to  this 
deed  nor  is  it  an  issue  to  say  that  he  has  nothing  in  remainder;  and 
since  we  cannot  have  an  answer  to  his  statement,  we  pray  seisin. 

Sharshulle,  J.  One  has  heard  speak  of  that  which  Bereford  and 
Herle  [former  judges]  did  in  such  a  case,  that  is  to  sa}',  when  a  remain- 
der was  limited  in  fee  simple  by  fine  they  admitted  the  person  in  re- 
mainder to  defend,  and  it  was  said  b}'  them  that  it  would  be  otherwise 
if  the  limitation  were  by  deed  in  pais;  but  nevertheless,  no  precedent  is 
of  such  force  as  that  which  is  right. '^  .   .   . 

Hillary,  J.  Demandant,  will  you  sa}'  anything  else  to  oust  him  from 
being  admitted  ? 

R.  Thorpe.  If  it  so  seems  to  you,  we  are  ready  to  say  what  is  suflS- 
cient ;  and  I  think  you  will  do  as  others  have  done  in  the  same  case,  or 
else  we  do  not  know  what  the  law  is. 

HiLLART,  J.     It  is  the  will  of  the  Justices. 

Stonore,  C.  J.     No  ;  law  is  that  which  is  right. ^ 


Blackstones'  Commentaries,  Book  I,  pp.  68-73. 

Some  have  divided  the  common  law  into  two  principal  grounds  or 
foundations:  1.  Established  customs;  such  as  that,  where  there  are 
three  brothers,  the  eldest  brother  shall  be  heir  to  the  second,  in  exclu- 
sion of  the  3'oungest :  and  2.  Established  rules  and  maxims;  as,  "  that 
the  king  can  do  no  wrong,  that  no  man  shall  be  bound  to  accuse  him- 
self," and  the  like.  But  I  take  these  to  be  one  and  the  same  thing. 
For  the  authority  of  these  maxims  rests  entirely  upon  general  reception 
and  usage :  and  the  onl}-  method  of  proving  that  this  or  that  maxim  is 
a  rule  of  the  common  law,  is  by  showing  that  it  hath  been  always  the 
custom  to  observe  it. 

But  here  a  very  natural,  and  very  material,  question  arises :  how  are 
these  customs  and  maxims  to  be  known,  and  by  whom  is  their  validity 
to  be  determined  ?  The  answer  is,  b}'  the  judges  in  the  several  courts 
of  justice.  The}'  are  the  depositaries  of  the  laws ;  the  living  oracles 
who  must  decide  in  all  cases  of  doubt,  and  who  are  bound  b}'  an  oath 
to  decide  according  to  the  law  of  the  land.  The  knowledge  of  that  law 
is  derived  from  experience  and  stud}' ;  from  the  ^^  vlginti  annorum  lucu- 
hrationes"  which  Fortescue  mentions  ;  and  from  being  long  personally 
accustomed  to  the  judicial  decisions  of  their  predecessors.  And  indeed 
these  judicial  decisions  are  the  principal  and  most  authoritative  evi- 
dence that  can  be  given,  of  the  existence  of  such  a  custom  as  shall 
form  a  part  of  the  common  law.  The  judgment  itself,  and  all  the  pro- 
ceedings previous  thereto,  are  carefully  registered  and  preserved,  under 

1  Come  resoun. 

2  Nanyl;  ley  est  resoun. 


CHAP.  I.]  LANGBRIDGE'S   CASE.  3 

the  name  of  records,  in  public  repositories  set  apart  for  that  particular 
purpose  ;  and  to  them  frequent  recourse  is  had  when  any  critical  ques- 
tion arises  in  the  determination  of  which  former  precedents  maj-  give 
light  or  assistance.  And  therefore,  even  so  early  as  the  conquest,  we 
find  the  '■'■  prceteritorum  memoria  eoentorum  ''  reckoned  up  as  one  of  the 
chief  qualifications  of  those,  who  were  held  to  be  "  legih us  patriae  optime 
institutV  For  it  is  an  established  rule  to  abide  by  former  precedents, 
where  the  same  points  come  again  in  litigation  :  as  well  to  keep  the 
scale  of  justice  even  and  stead}',  and  not  liable  to  waver  with  ever}'  new 
judge's  opinion  ;  as  also  because  the  law  in  that  case  being  solemnly 
declared  and  determined,  what  before  was  uncertain,  and  perhaps  indif- 
ferent, is  now  become  a  permanent  rule,  which  it  is  not  in  the  breast  of 
any  subsequent  judge  to  alter  or  vary  from,  according  to  his  private 
sentiments  :  he  being  sworn  to  determine,  not  according  to  his  own 
private  judgment,  but  according  to  the  known  laws  and  customs  of  the 
land ;  not  delegated  to  pronounce  a  new  law,  but  to  maintain  and  ex- 
pound the  old  one.  Yet  this  rule  admits  of  exception,  where  the  former 
determination  is  most  evidently  contrary  to  reason  ;  much  more  if  it  be 
clearly  contrary  to  the  divine  law.  But  even  in  such  cases  the  subse- 
quent judges  do  not  pretend  to  make  a  new  law,  but  to  vindicate  the 
old  one  from  misrepresentation.  For  if  it  be  found  that  the  former 
decision  is  manifestly  absurd  or  unjust,  it  is  declared,  not  that  such  a 
sentence  was  bad  laio,  but  that  it  was  not  laio  /  that  is,  that  it  is  not 
the  established  custom  of  the  realm,  as  has  been  erroneously  deter- 
mined. And  hence  it  is  that  our  lawyers  are  with  justice  so  copious 
in  their  encomiums  on  the  reason  of  the  common  law ;  that  they  tell  us 
that  the  law  is  the  perfection  of  reason,  that  it  always  intends  to  con- 
form thereto,  and  that  what  is  not  reason  is  not  law.  Not  that  the  par- 
ticular reason  of  every  rule  in  the  law  can  at  this  distance  of  time  be 
always  precisely  assigned ;  but  it  is  sufficient  that  there  be  nothing  in 
the  rule  flatly  contradictory  to  reason,  and  then  the  law  will  presume 
it  to  be  well  founded.  And  it  hath  been  an  ancient  observation  in  the 
laws  of  England,  that  whenever  a  standing  rule  of  law,  of  which  the 
reason  perhaps  could  not  be  remembered  or  discerned,  hath  been 
wantonly  broken  in  upon  by  statutes  or  new  resolutions,  the  wisdom  of 
the  rule  hath  in  the  end  appeared  from  the  inconveniences  that  have 
followed  the  innovation. 

The  doctrine  of  the  law  then  is  this :  that  precedents  and  rules  must 
be  followed,  unless  flatly  absurd  or  unjust :  for  though  their  reason  be 
not  obvious  at  first  view,  yet  we  owe  such  a  deference  to  former  times 
as  not  to  suppose  that  they  acted  wholly  without  consideration.  To 
illustrate  this  doctrine  by  examples.  It  has  been  determined,  time  out 
of  mind,  that  a  brother  of  the  half  blood  shall  never  succeed  as  heir  to 
the  estate  of  his  half  brother,  but  it  shall  rather  escheat  to  the  king, 
or  other  superior  lord.  Now  this  is  a  positive  law,  fixed  and  estab- 
lished by  custom,  which  custom  is  evidenced  by  judicial  decisions;  and 
therefore  can  never  be  departed  from  by  any  modern  judge  without  a 


4  langbridge's  case.  [chap,  l 

breach  of  his  oath  and  the  law.  For  herein  there  is  nothing  repugnant 
to  natural  justice;  though  the  artificial  reason  of  it,  drawn  from  the 
feodal  law,  may  not  be  quite  obvious  to  everybody.  And  therefore, 
though  a  modern  judge,  on  account  of  a  supposed  hardship  upon  the 
half  brother,  might  wish  it  had  otherwise  been  settled,  3'et  it  is  not  in 
bis  power  to  alter  it.  But  if  anv  court  were  now  to  determine,  that  an 
elder  brother  of  the  half  blood  might  enter  upon  and  seize  any  lands 
that  were  purchased  by  his  3"ounger  brother,  no  subsequent  judges 
would  scruple  to  declare  that  such  prior  determination  was  unjust,  was 
unreasonable,  and  therefore  was  noi  laic.  So  that  the  laiv,  and  the 
opinion  of  the  Judf/e,  are  not  always  convertible  terms,  or  one  and 
the  same  thing  ;  since  it  sometimes  may  happen  that  the  judge  may 
mistake  the  law.  Upon  the  whole,  however,  we  may  take  it  as  a  gen- 
eral rule,  "that  the  decisions  of  courts  of  justice  are  the  evidence  of 
what  is  common  law :  "  in  the  same  manner  as,  in  the  civil  law,  what 
the  emperor  had  once  determined  was  to  serve  for  a  guide  for  the 
future. 

The  decisions  therefore  of  courts  are  held  in  the  highest  regard,  and  are 
not  onl}'  preserved  as  authentic  records  in  the  treasuries  of  the  several 
^g  courts,  but  are  handed  out  to  pulilic  view  in  the  numerous  volumes  of 

reports  which  furnish  the  lawyer's  library.  These  reports  are  histories 
of  the  several  cases,  with  a  short  summary  of  the  proceedings,  which 
are  preserved  at  large  in  the  record  ;  the  arguments  on  both  sides  and 
the  reasons  the  courts  gave  for  this  judgment ;  taken  down  in  short 
notes  by  persons  present  at  the  determination.  And  these  serve  as 
indexes  to,  and  also  to  explain,  the  records,  which  always,  in  matters 
of  consequence  and  nicety,  the  judges  direct  to  be  searched.  The 
reports  are  extant  in  a  regular  series  from  the  reign  of  King  Edward 
the  Second  inclusive  ;  and,  from  his  time  to  that  of  Henrj-  the  Eighth, 
were  taken  by  the  prothonotaries,  or  chief  scribes  of  the  court,  at  the 
expense  of  the  crown,  and  published  anmmlly,  whence  they  are  known, 
under  the  denomination  of  the  year  books.  And  it  is  much  to  be 
wished  that  this  beneficial  custom  had,  under  proper  regulations,  been 
continued  to  this  day:  for,  though  King  James  the  First,  at  the  instance 
of  Lord  Bacon,  appointed  two  reporters  with  a  handsome  stipend  for 
this  purpose,  yet  that  wise  institution  was  soon  neglected,  and  from 
the  reign  of  Henry  the  Eighth  to  the  present  time  this  task  has  l)een 
executed  b}'  man}'  private  and  contemporary  hands;  who  sometimes 
through  haste  and  inaccuracy",  sometimes  through  mistake  and  want  of 
skill,  have  published  very  crude  and  imperfect  (perhaps  contradictory) 
accounts  of  one  and  the  same  determination.  Some  of  the  most  valu- 
able of  the  ancient  reijorts  are  those  published  by  Lord  Chief-Justice 
■Coke;  a  man  of  infinite  learning  in  his  profession,  though  not  a  little 
infected  with  the  pedantry  and  quaintness  of  the  times  he  lived  in, 
which  appear  strong!}-  in  all  his  works.  However,  his  writings  are  so 
biuhly  esteemed,  that  they  are  generally  cited  without  the  author's 
name. 


CHAP.  I.]  LANGBRIDGE'S   CASE,  5 

Besides  these  reporters,  there  are  also  other  authors,  to  whom  great 
veneration  and  respect  is  paid  by  the  students  of  the  common  law. 
Such  are  Glanvil  and  Bracton,  Britton  and  Fleta,  Hengham  and  Little- 
ton, Stathara,  Brooke,  Fitzherbert,  and  Staundforde,  with  some  others 
of  ancient  date  ;  whose  treatises  are  cited  as  authority,  and  are  evi- 
dence that  cases  have  formerly  happened  in  which  such  and  such 
points  were  determined,  which  are  now  become  settled  and  first  princi- 
ples. One  of  the  last  of  these  methodical  writers  in  point  of  time,  whose 
works  are  of  any  intrinsic  authority  in  the  courts  of  justice,  and  do  not 
entirely  depend  on  the  strength  of  their  quotations  from  older  authors, 
is  the  same  learned  judge  we  have  just  mentioned,  Sir  Edward  Coke  ; 
who  hath  written  four  volumes  of  institutes,  as  he  is  pleased  to  call 
them,  though  they  have  little  of  the  institutional  method  to  warrant 
such  a  title.  The  first  volume  is  a  ver}'  extensive  comment  upon  a 
little  excellent  treatise  of  tenures,  compiled  by  Judge  Littleton  in  the 
reign  of  Edward  the  Fourth.  This  comment  is  a  rich  mine  of  valuable 
common  law  learning,  collected  and  heaped  together  from  the  ancient 
reports  and  year  books,  but  greatl}'  defective  in  method.  The  second 
volume  is  a  comment  upon  many  old  acts  of  parliament,  without  any 
systematical  order  ;  the  third  a  more  methodical  treatise  of  the  pleas  of 
the  crown  ;  and  the  fourth  an  account  of  the  several  species  of  courts. 


r  v^-x-'L 


uuO 


Parke,  J.,  in  Mirehouse  v.  Rennell,  1  CI.  &  F.  527,  546.^  The  pre- 
cise facts  stated  by  your  Lordships  have  never,  as  far  as  we  can  learn, 
been  adjudicated  upon  in  any  Court ;  nor  is  there  to  be  found  any 
opinion  upon  them  of  any  of  our  Judges,  or  of  those  ancient  text  writers 
to  whom  we  look  up  as  authorities.  The  case,  therefore,  is  in  some 
sense  new,  as  many  others  are  which  continuall}'  occur ;  but  we  have 
no  right  to  consider  it,  because  it  is  new,  as  one  for  which  the  law  has 
not  provided  at  all ;  and  because  it  has  not  yet  been  decided,  to  decide 
it  for  ourselves,  according  to  our  own  judgment  of  what  is  just  and 
expedient.  Our  common-law  system  consists  in  the  applying  to  new 
combinations  of  circumstances  those  rules  of  law  which  we  derive  from 
legal  principles  and  judicial  precedents ;  and  for  the  sake  of  attaining 
uniformity,  consistency,  and  certaint\",  we  must  appl}-  those  rules,  where 
they  are  not  plainl}-  unreasonable  and  inconvenient,  to  all  cases  which 
arise;  and  we  are  not  at  liberty  to  reject  them,  and  to  abandon  all 
analogy  to  them,  in  those  to  which  they  have  not  yet  been  judicialh' 
applied,  because  we  think  that  the  rules  are  not  as  convenient  and 
reasonable  as  we  ourselves  could  have  devised.  It  appears  to  me  to 
be  of  great  importance  to  keep  this  principle  of  decision  steadily  in 
view,  not  merely  for  the  determination  of  the  particular  case,  but  for 
the  interests  of  law  as  a  science. 

1  Cited  in  Wambaugh,  Study  of  Cases,  §  77  :  and  see  §§  73-79.  —  Ed. 


K 


6  COMMONWEALTH  V.   CHAPMAN.  [CHAP.  L 

COMMONWEALTH  v.    CHAPMAN. 

Supreme  Judicial  Court  of  Massachusetts.      1848. 

[Reported  13  Metcalf,  68.] 

Shaw,  C.  J.  This  was  an  indictment  against  the  defendants  for  a 
false  and  malicious  libel,  tried  before  the  Court  of  Common  Pleas,  and, 
upon  a  conviction  there,  the  case  is  brought  before  this  court,  upon  an 
exception  which  has  been  most  elaborately  argued  by  the  learned 
counsel  for  the  defendants,  and  which,  if  sustained,  must  go  to  the 
foundation  of  the  prosecution ;  namely,  that  there  is  no  law  of  this 
Commonwealth  by  which  the  writing  and  publishing  of  a  malicious  libel 
can  be  prosecuted  by  indictment,  and  punished  as  an  offence.  The 
proposition  struck  us  with  great  surprise,  as  a  most  startling  one  ;  but 
as  it  was  seriously  presented  and  earnestly  urged  in  argument,  we  felt 
bound  to  listen,  and  give  it  the  most  careful  consideration;  but  after 
the  fullest  deliberation,  we  are  constrained  to  say,  that  we  can  enter- 
tain no  more  doubt  upon  the  point  than  we  did  when  it  was  first 
offered. 

It  is  true  that  there  is  no  statute  of  the  Commonwealth  declaring  the 
writing  or  publishing  of  a  written  libel,  or  a  malicious  libel,  by  signs 
and  pictures,  a  punishable  offence.  But  this  goes  little  way  towards 
settling  the  question.  A  great  part  of  the  municipal  law  of  Massa- 
chusetts, both  civil  and  criminal,  is  an  unwritten  and  traditionary  law. 
It  has  been  common  to  denominate  this  "the  common  law  of  Eng- 
land," because  it  is  no  doubt  true  that  a  large  portion  of  it  has  been 
derived  from  the  laws  of  England,  either  the  common  law  of  England, 
or  those  English  statutes  passed  before  the  emigration  of  our  ancestors, 
and  constituting  a  part  of  that  law,  by  which,  as  English  subjects,  they 
were  governed  when  thev  emigrated  ;  or  statutes  made  afterwards,  of  a 
general  nature,  in  amendment  or  modification  of  the  common  law, 
which  were  adopted  in  the  colony  or  province  by  general  consent. 

In  addition  to  these  sources  of  unwritten  law,  some  usages,  growing 
out  of  the  peculiar  situation  and  exigencies  of  the  earlier  settlers  of 
Massachusetts,  not  traceable  to  any  written  statute  or  ordinance,  but 
adopted  b}'  general  consent,  have  long  had  the  force  of  law ;  as,  for 
instance,  the  convenient  practice,  by  which,  if  a  married  woman  join 
with  her  husband  in  a  deed  conveying  land  of  which  she  is  seized  in 
her  own  right,  and  simply  acknowledge  it  before  a  magistrate,  it  shall 
be  valid  to  pass  her  land,  without  the  more  expensive  process  of  a  fine, 
required  by  the  common  law.  Indeed,  considering  all  these  sources  of 
unwritten  and  traditionary  law,  it  is  now  more  accurate,  instead  of  the 
common  law  of  England,  which  constitutes  a  part  of  it,  to  call  it  col- 
lectively the  common  law  of  Massachusetts. 

To  a  very  great  extent,  the  unwritten  law  constitutes  the  basis  of  our 
jurisprudence,  and  furnishes  the  rules  by  which  public  and  private  rights 


CHAP.  I.]  COMMONWEALTH  V.   CHAPMAN.  7 

are  established  and  secured,  the  social  relations  of  all  persons  regulated, 
their  rights,  duties,  and  obligations  determined,  and  all  violations  of 
duty  redressed  and  punished.  Without  its  aid,  the  written  law,  em-  '/ 
bracing  the  constitution  and  statute  laws,  would  constitute  but  a  lame, 
partial,  and  impracticable  system.  Even  in  many  cases,  where 
statutes  have  been  made  in  respect  to  particular  subjects,  they  could 
not  be  carried  into  effect,  and  must  remain  a  dead  letter,  without  the 
aid  of  the  common  law.  In  cases  of  murder  and  manslaughter,  the 
statute  declares  the  punishment ;  but  what  acts  shall  constitute  murder, 
what  manslaughter,  or  what  justifiable  or  excusable  homicide,  are  left 
to  be  decided  by  the  rules  and  principles  of  the  common  law.  So,  if 
an  act  is  made  criminal,  but  no  mode  of  prosecution  is  directed,  or  no 
punishment  provided,  the  common  law  furnishes  its  ready  aid,  pre- 
scribing the  mode  of  prosecution  by  indictment,  the  common  law 
punishment  of  fine  and  imprisonment.  Indeed,  it  seems  to  be  too 
obvious  to  require  argument,  that  without  the  common  law,  our  legis- 
lation and  jurisprudence  would  be  impotent,  and  wholly  deficient  in 
completeness  and  symmetry,  as  a  system  of  municipal  law. 

It  will  not  be  necessary  here  to  consider  at  large  the  sources  of  the 
unwritten  law,  its  authorit}-  as  a  binding  rule,  derived  from  long  and 
general  acquiescence,  its  provisions,  limits,  qualifications,  and  excep- 
tions, as  established  l)y  well  authenticated  usage  and  tradition.  It  is 
sufficient  to  refer  to  1  Bl.  Com.  63  et  seq. 

/  If  it  be  asked,  "  How  are  these  customs  or  maxims,  constituting  the  \(m„^^,,A^. 
common  law  to  be  known,  and  by  whom  is  their  validity  to  be  deter- 
mined?" Blackstone  furnishes  the  answer;  "by  the  judges  in  the 
several  courts  of  justice.  They  are  the  depositaries  of  the  laws,  the 
living  oracles,  who  must  decide  in  all  cases  of  doubt,  and  who  are 
bound  by  oath  to  decide  according  to  the  law  of  the  land.  Their 
knowledge  of  that  law  is  derived  from  experience  and  study,"  "  and 
from  being  long  personally  accustomed  to  the  judicial  decisions  of 
their  predecessors."     1  Bl.  Com.  69. 

Of  course,  in  coming  to  any  such  decision,  judges  are  bound  to 
resort  to  the  best  sources  of  instruction,  such  as  the  records  of  courts 
of  justice,  well  authenticated  histories  of  trials,  and  books  of  reports, 
digests,  and  brief  statements  of  such  decisions,  prepared  by  suitable 
persons,  and  the  treatises  of  sages  of  the  profession,  whose  works  have 
an  established  reputation  for  correctness. 

That  there  is  such  a  thing  as  a  common  or  unwritten  law  of  Massa- 
chusetts, and  that,  when  it  can  be  authentically  estabhshed  and  sus- 
tained, it  is  of  equal  authority  and  binding  force  with  the  statute  law, 
seems  not  seriously  contested  in  the  argument  before  us.  But  it  is 
urged  that,  in  the  range  and  scope  of  this  unwritten  law,  there  is  no 
provision  which  renders  the  writing  or  publishing  of  a  malicious  libel 
punishable  as  a  criminal  offence. 

The  stress  of  the  argument  of  the  learned  counsel  is  derived  from  a 
supposed  qualification  of  the  general  proposition  in  the  constitution  of 


8  COMMONWEALTH  V.   CHAPMAN.  [CHAP.   L 

Massachusetts,  usually  relied  on  in  proof  of  the  continuance  in  force 
of  the  rules  and  principles  of  the  common  law,  as  the}-  existed  before 
the  adoption  of  the  constitution.  The  clause  is  this  :  Chap.  6,  Art.  1, 
Sect.  6  :  "  All  the  laws  which  have  been  adopted,  used,  and  approved  in 
the  province,  colony-,  or  state  of  Massachusetts  Bay  and  usually  prac- 
tised on  in  the  courts  of  law,  shall  still  remain  and  be  in  full  force 
until  altered  or  repealed  b}'  the  legislature ;  such  parts  only  excepted 
as  are  repugnant  to  the  rights  and  liberties  contained  in  this 
constitution." 

It  is  then  argued,  that  it  is  in  virtue  of  this  clause  of  the  constitu- 
tion that  the  common  law  of  England,  and  all  other  laws  existing 
before  the  revolution,  remain  in  force,  and  that  this  clause  so  far 
modifies  the  general  proposition,  that  no  laws  are  saved,  but  those 
which  have  been  actually  applied  to  cases  in  judgment  in  a  court  of 
legal  proceeding ;  and  unless  it  can  be  shown  affirmativel}'  that  some 
judgment  has  been  rendered,  at  some  time  before  the  adoption  of  the 
constitution,  affirmative  of  an}-  particular  rule  or  principle  of  the 
common  law,  such  rule  is  not  brought  within  the  saving  power  of  this 
clause,  and  cannot  therefore  be  shown  to  exist.  We  doubt  the  sound- 
ness of  this  proposition,  and  the  correctness  of  the  conclusion  drawn 
from  it. 

We  do  not  accede  to  the  proposition,  that  the  present  existence  and 
effect  of  the  whole  body  of  law,  which  existed  before  the  constitution, 
depends  soleh'  upon  this  ijrovision  of  it.  We  take  it  to  be  a  well- 
settled  principle,  acknowledged  by  all  civilized  states  governed  by 
law,  that  by  means  of  a  political  revolution,  b}-  which  the  political 
organization  is  changed,  the  municipal  laws,  regulating  their  social 
relations,  duties,  and  rights,  are  not  necessarily  abrogated.  They 
remain  in  force,  except  so  far  as  they  are  repealed  or  modified  b}'  the 
new  sovereign  authorit}-.  Indeed,  the  existence  of  this  body  of  laws, 
and  the  social  and  personal  rights  dependent  upon  them,  from  1776, 
when  the  Declaration  of  Independence  was  made,  and  our  political 
revolution  took  place,  to  1780,  when  this  constitution  was  adopted, 
depend  on  this  principle.  The  clause  in  the  constitution,  therefore, 
though  highly  proper  and  expedient  fo  remove  doubts,  and  give 
greater  assurance  to  the  cautious  and  timid,  was  not  necessary"  to 
preserve  all  prior  laws  in  force,  and  was  rather  declarator}-  of  an 
existing  I'ule,  than  the  enactment  of  a  new  one.  We  think,  therefore, 
it  should  have  such  a  construction  as  best  to  carr}'  into  effect  the 
great  principle  it  w^as  intended  to  establish. 

But  further ;  we  think  the  argument  is  unsound  in  assuming  that  no 
rule  of  the  common  law  can  be  established  under  this  clause  of  the 
constitution,  without  showing  affirmatively,  that  in  some  judicial  pro- 
ceeding, such  rule  of  law  has  been  drawn  in  question  and  affirmed, 
previoush'  to  the  adoption  of  the  constitution.  During  that  time  there 
were  no  published  report  of  judicial  proceedings.  The  records  of 
courts  were  very  imperfectly  kept,  and  afford  but  little  information  in 


CHAP.  I.] 


COMMONWEALTH   V.   CHAPMAN. 


regard  to  the  rules  of  law  discussed  and  adopted  in  them.  And  who 
has  examined  all  the  records  of  all  the  criminal  courts  of  Massachu- 
setts, and  can  declare  that  no  records  of  such  prosecutions  can  be 
found  ?  But  so  far  as  it  regards  libel,  as  a  criminal  offence,  we  think 
it  does  appear,  from  the  very  full  and  careful  examination  of  the  late 
Judge  Thacher  (Comtnonwealth  v.  Whitmarsh,  Thacher's  Crim. 
Cases,  441),  that  many  .prosecutions  for  libel  were  instituted  in  the 
criminal  courts  before  the  Revolution,  and  none  were  ever  quashed  or 
otherwise  disposed  of,  on  the  ground  that  there  was  no  law  rendering 
libels  punishable.  In  the  case  of  the  indictments  returned  against 
Governor  Gage  and  others,  very  much  against  the  will  of  the  judges, 
those  indictments  were  received  and  filed,  and  remained,  until  7ion. 
prossed  b}'  the  king's  attorne^'-general.  This  investigation  of  the 
history  of  the  common  law  of  Massachusetts  is  so  thorough,  complete, 
and  satisfactory',  that  it  is  sufficient  to  refer  to  it,  as  a  clear  elucidation 
of  the  subject- 
But  we  think  there  is  another  species  of  evidence  to  prove  the 
existence  of  the  common  law,  making  libel  an  offence  punishable  by 
law,  clear,  satisfactor}',  and  decisive  ;  and  that  is,  these  rules  of  law, 
with  some  modification,  caused  b}'  the  provisions  of  the  constitution, 
have  been  affirmed,  declared,  and  ratified  by  the  judiciary  and  the 
legislative  departments  of  the  existing  government  of  Massachusetts, 
by  those  whose  appropriate  province  and  constitutional  duty  it  was 
to  act  and  decide  upon  them ;  so  that  they  now  stand  upon  a  basis  of 
authority  which  cannot  be  shaken,  and  must  so  stand  until  altered  or 
modified  b}'  the  legislature. 

When  our  ancestors  first  settled  this  countr}',  the}'  came  here  as 
English  subjects  ;  they  settled  on  the  land  as  English  territor}',  con- 
stituting part  of  the  realm  of  England,  and  of  course  governed  by  its 
laws  ;  they  accepted  charters  from  the  English  government,  conferring 
both  political  powers  and  civil  privileges  ;  and  the}'  never  ceased  to 
acknowledge  thems^^lves  English  subjects,  and  never  ceased  to  claim 
the  rights  and  privileges  of  English  subjects,  till  the  Revolution.  It  is 
not  therefore,  perhaps,  so  accurate  to  say  that  they  established  the 
laws  of  England  here,  as  to  say,  that  they  were  subject  to  the  laws  of 
Ejigland.  When  they  left  one  portion  of  its  territory,  they  were  alike 
subject,  on  their  transit  and  when  they  arrived  at  another  portion  of 
the  English  territory ;  and  therefore  always,  till  the  Declaration  of 
Independence,  they  were  governed  and  protected  by  the  laws  of  Eng- 
land, so  far  as  those  laws  were  applicable  to  their  state  and  condition. 
Under  this  category  must  come  all  municipal  laws  regulating  and 
securing  the  rights  of  real  and  personal  property,  of  person  and  per- 
sonal liberty,  of  habitation,  of  reputation  and  character,  and  of  peace. 
The  laws  designed  for  the  protection  of  reputation  and  character,  and 
to  prevent  private  quarrels,  aflTrays,  and  breaches  of  peace,  by  punish- 
ing malicious  libel,  were  as  important  and  as  applicable  to  the  state 
and  condition  of  the  colonists  as  the  law  punishing  violations  of  the 


UK^vvulio 


10  COMMOXWEALTII   V.   CHAPMAN.  [CHAP.   I. 

rights  of  property,  of  person,  or  of  habitation;  that  is,  as  laws  for 
punishing  larcen}',  assault  and  battery,  or  burglary.  Being  part  of  the 
common  law  of  England,  applicable  to  the  state  and  condition  of  the 
colonists,  they  necessarily  applied  to  all  English  subjects  and  terri- 
tories, as  well  in  America  as  in  Great  Britain,  and  so  continued  applic- 
able till  the  Declaration  of  Independence. 

This,  therefore,  would  be  evidence,  a  pi'iori^  that  they  were  in  force, 
and  were  adopted  by  the  clause  cited  from  the  constitution,  except  so 
far  as  modified  by  the  excepting  clause. 

That  the  law  of  libel  existed,  at  the  first  migration  of  our  ancestors, 
and  during  the  whole  period  of  the  colonial  and  provincial  governments, 
is  proved  by  a  series  of  unquestionable  authorities.  ^ 

deceptions  overruled.^ 


1  The  learned  Chief  Justice  proceeded  to  show  that  these  authorities  had  been 
followed  in  Massachusetts  since  the  adoption  of  the  constitution.  —  Ed. 

2  See  to  the  same  effect  State  v.  Cawood,  2  Stew.  (Ala.)  360  ;  State  v.  Danforth,  3 
Conn.  112  ;  State  v.  Davis,  2  Penne.  (Del.)  139;  State  v.  Buchanan,  5  H.  &  J.  (Md.) 
317  ;  Smith  v.  People,  25  111.  17  ;  State  v.  Pulle,  12  Minn.  164  ;  Terr.  v.  Ye  Wan,  2 
Mont.  478  ;  State  v.  Rollins,  8  N.  H.  550  ;  Com.  v.  McHale,  97  Pa.  397  ;  State  v. 
Williams,  2  Overt.  (Tenn.)  108  ;  State  v.  La  Forrest,  71  Vt.  311  ;  Houston  v.  Com., 
87  Va.  257  ;  Nicholls  v.  State,  68  Wis.  416. 

In  State  v.  Danforth,  supra,  Hosmer,  C.  J.,  said  :  "It  is  indispensably  necessary 
that  there  should  exist  a  common  law,  on  the  broad  principles  of  public  convenience 
and  necessity,  defining  crimes  and  prescribing  adequate  punishments.  To  determine, 
by  statute,  every  offence  and  direct  the  punishment  which  shall  be  inflicted,  has  not, 
so  far  as  I  know,  ever  been  attempted,  and  would  be  nearly  impracticable.  The  com- 
munity must,  at  least,  be  left  exposed  to  injuries  the  most  atrocious  ;  and  the  evils 
resulting  would  be  much  greater,  than  any  mind  will  anticipate,  from  the  exercise  of 
a  sound  discretion,  in  the  application  of  principles  and  analogies  which  the  common 
law  supplies. "  —  Ed. 


CHAP.  I.]  BLANK ARD    V.    GALDY. 


BLANKARD  v.  GALDY. 
King's  Bench.     1693. 
[Reported  2  Salkeld,  411.] 

In  debt  on  a  bond,  the  defendant  prayed  oyer  of  the  condition,  and 
pleaded  the  statute  E.  6.  against  buying  offices  concerning  the  admin- 
istration of  justice  ;  and  averred,  That  this  bond  was  given  for  the 
purchase  of  the  office  of  provost-marshal  in  Jamaica,  and  that  it  con- 
cerned the  administration  of  justice,  and  that  Jamaica  is  part  of  the 
revenue  and  possessions  of  the  Crown  of  England  :  The  plaintiff  replied, 
that  Jamaica  is  an  island  beyond  the  seas,  which  was  conquered  from 
the  Indians  and  Spaniards  in  Queen  Elizabetii's  time,  and  the  inhabit- 
ants are  governed  by  their  own  laws,  and  not  by  the  laws  of  England  : 
The  defendant  rejoined,  That  before  such  conquest  they  were  governed 
by  their  own  laws  ;  but  since  that,  by  the  laws  of  England :  Shower 
argued  for  the  plaintiff,  that,  on  a  judgment  in  Jamaica,  no  writ  of 
error  lies  here,  but  only  an  appeal  to  the  Council ;  and  as  they  are 
not  represented  in  our  Parliament,  so  they  are  not  bound  by  our  stat- 
utes, unless  specially  named.  Vide  And.  115.  Pemberton  contra 
argued,  that  by  the  conquest  of  a  nation,  its  liberties,  rights,  and  prop- 
erties are  quite  lost ;  that  by  consequence  their  laws  are  lost  too,  for 
the  law  is  but  the  rule  and  guard  of  the  other  ;  those  that  conquer,  can- 
not by  their  victor}-  lose  their  laws,  and  become  subject  to  others. 
Vide  Vaugh.  405.  That  error  lies  here  upon  a  judgment  in  Jamaica, 
which  could  not  be  if  they  were  not  under  the  same  law.  Et  'per  Holt, 
C.  J.  &  Cur., 

First,  in  case  of  an  uninhabited  country  newly  found  out  by  English 
subjects,  all  laws  in  force  in  England  are  in  force  there  ;  so  it  seemed 
to  be  agreed. 

Secondl}-,  Jamaica  being  conquered,  and  not  pleaded  to  be  parcel  of 
the  kingdom  of  England,  but  part  of  the  possessions  and  revenue  of 
the  Crown  of  England,  the  laws  of  England  did  not  take  place  there, 
until  declared  so  by  the  conqueror  or  his  successors.  The  Isle  of  Man 
and  Ireland  are  part  of  the  possessions  of  the  Crown  of  England  ;  yet 
retain  their  ancient  laws  :  That  in  Davis  36.  it  is  not  pretended,  that 
the  custom  of  tanistry  was  determined  by  the  conquest  of  Ireland,  but 
by  the  new  settlement  made  there  after  the  conquest :  That  it  was  im- 
possible the  laws  of  this  nation,  by  mere  conquest,  without  more, 
should  take  place  in  a  conquered  country  ;  because,  for  a  time,  there 
must  want  officers,  without  which  our  laws  can  have  no  force  :  That  if 
our  law  did  take  place,  yet  they  in  Jamaica  having  power  to  make  new 
laws,  our  general  laws  maybe  altered  by  theirs  in  particulars;  also 
they  held,  that  in  the  case  of  an  infidel  country,  their  laws  by  conquest 
do  not  entirely  cease,  but  only  such  as  are  against  the  law  of  God  ;  and 


12  FIRST    NAT10^'AL    BANK   V.    KINNER.  [CHAP.   I. 

that  in  such  cases  where  the  laws  are  rejected  or  silent,  the  conquered 
country  shall  be  governed  according  to  the  rule  of  natural  equity. 

Judgment  -pro  quer} 


FIRST  NATIONAL  BANK  v.  KINNER. 
Supreme  Court  of  Utah  Territory,  1873. 

[Reported  1   Utah  100.] 

Emerson,  J.  In  American  Ins.  Co.  v.  Canter,  1  Pet.  511,  the 
court,  by  Judge  Marshall,  say,  substantially,  that  the  laws  of  Florida, 
as  they  were  when  the  Territory  was  ceded,  so  far  as  not  inconsistent 
with  he  Constitution  and  Laws  of  the  United  States,  continued 
in  force  until  altered  by  the  newly  created  power  of  the  State.  (See, 
also,  L'nited  States  v.  Powers,  11  How.  570;  Strothers  v.  Lucas,  12  Pet. 
410,  436.)  This  appears  to  be  the  settled  doctrine  in  regard  to  con- 
quered and  ceded  Territory  in  the  absence  of  special  treaty  stipulation. 
It  applies  to  territory  acquired  from  Mexico,  since  the  treaty  of  Guada- 
loupe  made  no  special  provision  on  the  subject.  Utah  was  embraced 
in  that  acquisition.  As  in  Florida  the  pre-existing  law  was  Spanish, 
so  in  Utah,  it  was  Mexican,  and  in  both  cases  the  laws  were  derived 
mainly  from  the  laws  of  Rome.  In  neither  did  the  English  common 
law,  or  the  Statute  of  Frauds,  prevail.  Congress  made  no  special 
change,  and  the  Territorial  Legislature,  upon  whom  authority  was 
conferred,  have  made  no  express  enactment  upon  the  subject. 

This  Territory  was  first  settled  in  1847,  and  from  that  time  up  to 
the  acquisition  and  treaty  in  1848,  the  settlers  were  comparatively  few 
in  number.  There  were  no  settled  laws,  usages,  and  customs  among 
them.  They  came  here  as  American  citizens,  under  the  flag,  and 
claiming  the  protection  of  the  Lnited  States  Government. 

The  particular  class  of  persons  forming  the  great,  if  not  the  entire 
bulk  of  emigrants,  claim  to  have  furnished  troops  from  among  their 
own  numbers  to  assist  this  Government  in  its  war  against  Mexico. 

At  the  time  of  the  acquistion  and  treaty,  they  could  not  claim  Mexi- 
can citizenship,  and  have  never  adopted  its  laws  and  customs. 

Soon  after  the  change  of  sovereignty  by  the  treaty,  emigrants  in 

^  Another  report  of  the  same  case  may  be  found  in  4  Mod.  222.  In  that  case  the 
Court  is  reported  to  have  said :  "  And  therefore  it  was  held,  that  Jamaica  was  not  gov- 
erned by  the  laws  of  England  after  the  conquest  thereof,  till  new  laws  were  made:  for 
they  had  neither  sheriff  or  counties;  they  were  only  an  assembly  of  people  which  are 
not  bound  by  our  laws,  unless  particularly  mentioned.  In  Barbadoes  all  freeholds  are 
subject  to  debts,  and  are  esteemed  as  chattels  till  the  creditors  are  satisfied,  and  then 
the  lands  descend  to  an  heir;  but  the  law  is  otherwise  here;  which  shows  that  though 
that  island  is  parcel  of  the  possessions  of  England,  yet  it  is  not  governed  by  the  laws 
made  here,  but  by  their  own  particular  laws  and  customs." 

Ace.  Earl  Derby's  Case,  2  And.  116;  Mem-  2  P.  Wms.  75.  See  Cross  v.  Harrison, 
16  How.  164;  Airhart  v.  Massieu,  98  U.  S.  491.— Ed. 


•€HAP.  I.]  CHAPPELL    V.    JARDINE.  1$ 

large  numbers  flocked  in  from  the  States  and  surrounding  Territories, 
and  for  many  years  there  has  been  an  organized  community. 

When  we  turn  to  the  communities  from  whence  these  emigrants  pro- 
ceeded, we  find  that  the\'  differed  one  from  another,  more  or  less,  in 
regard  to  their  laws  and  institutions.  No  two  are  alike.  In  the  most, 
it  is  true,  many  common-law  principles  and  doctrines  were  in  force. 
Still  the  body  of  the  common  law  in  each  was  peculiar  to  the  particular 
State,  and  it  was  rather  the  common  law  of  the  State  than  the  English 
common  law.  In  some,  the  English  statutes  had  been  received  as 
common  law ;  in  others,  not. 

These  diversities  make  it  impossible  to  assume  that  any  specific  body 
of  the  common  law  was  transplanted  to  the  Territory  by  the  fact  of 
immigration.  "^ 

But  one  course  was  open,  and  that  was  for  the  whole  body  of  the 
people  to  agree,  expressly  or  tacitly,  upon  a  common  measure.     It  was   | 
to  be  expected  that  the  emigrants  would  not  be  contented  with  the   j 
loose  and  alien  institutions  of  an  outlying  Mexican  department,  and    ' 
they  have  not  been. 

They  have  tacitly  agreed  upon  maxims  and  principles  of  the  common 
law  suited  to  their  conditions  and  consistent  with  the  Constitution  and 
Laws  of  the  United  States,  and  they  only  wait  recognition  b}'  the  courts 
to  become  the  common  law  of  the  Territory.  When  so  recognized, 
they  are  laws  as  certainly  as  if  expressly  adopted  by  the  law-making 
power. 


CHAPPELL   V.   JARDINE. 
Supreme  Court  of  Errors  of  Connecticut.     1884. 

[Reported  51  Connecticut,  6i.] 

Park,  C  J.^  This  is  a  suit  for  the  foreclosure  of  certain  mortgaged 
premises,  constituting  an  island,  known  as  Ram  Island,  in  Long  Island 
Sound.  The  complaint  alleges  that  the  land  mortgaged,  at  the  time 
the  deed  was  given,  lay  in  the  town  of  Southhold,  Suffolk  County,  in 
the  State  of  New  York,  and  it  is  averred  that  the  mortgage  was  re- 
corded in  the  office  of  the  clerk  of  Suffolk  County  in  that  State.  It  is 
further  alleged  that  Ram  Island,  by  the  recent  establishment  of  the 
boundary  line  between  the  State  of  New  York  and  this  State,  has  be- 
come a  part  of  the  town  of  Stonington  in  this  State.  The  complaint  is 
demurred  to,  so  that  the  averment  stands  admitted  that  the  island  was, 
wlien  the  mortgage  was  made,  a  part  of  the  State  of  New  York. 

We  have  heretofore  held  (Elphick  v.  Hoffman,  49  Conn.  331)  that 
the  boundary  agreed  upon  by  the  joint  commission  of  the  two  States 
and  established  bv  the  legislative  acceptance  of  both  States,  was  to  be 
regarded  as  presumably  a  designation  and  establishment  of  the  pre- 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


14  CHAPPELL   V.    JAKDINE.  [CHAP.   L 

existing  boundar}'  line  which  had  become  lost,  and  not  as  the  establish- 
ment of  a  new  line,  leaving  the  matter  open  to  proof  in  special  cases. 
If  we  should  apply  that  rule  here,  and  consider  the  island  in  question 
as  having  been  legally  a  part  of  this  State  when  the  mortgage  was 
made,  we  should  at  once  encounter  another  question  of  a  serious  nature. 
There  can  be  no  question  that  whatever  has  been  the  de  jure  jurisdic- 
tion over  the  island,  it  has  been  for  many  years  within  the  de  facto 
nirigdiction  of  the  State  of  New  York;  and  we  should  be  compelled  to 
determine  the  legal  effect  upon  this  mortgage  of  that  de  facto  jurisdic- 
tion. 

We  have  thought  it  as  well,  therefore,  to  take  the  case  as  the  parties 

^  have  themselves  presented  it,  the  plaintiff  hy  the  averments  of  his  com- 

'    plainl  and  the  defendants  by  the  admissions  of  their  demurrer,  and 

regard  the  island  in  question  as  having  been  within  the  State  of  New 

\    York  when  the  mortgage  was  made,  and  afterwards  brought  within 

•  Lhis  State  by  the  establishment  of  the  boundary  line.  Indeed  as  the 
proceeding  is  in  error  we  cannot  properly  govern  ourselves  by  anything 
"out  the  record  as  it  comes  before  us. 

And  in  treating  the  island  as  within  the  State  of  New  York  when  the 
mortgage  was  made  we  are  regarding  the  contract  and  the  rights  of 
the  parties  under  it,  precisely  as  the}'  themselves  understood  them  at 
the  time. 

The  mortgaged  premises  having  been  in  the  State  of  New  York  when 
the  mortgage  was  made,  it  is  of  course  to  be  governed  in  its  construc- 
tion and  effect  by  the  laws  of  that  State  then  in  force.  In  McCormick 
V.  Sullivant,  10  Wheat.  192,  the  court  sa}-:  "It  is  an  acknowledged 
principle  of  law  that  the  title  and  disposition  of  real  property  is  exclu- 
sively subject  to  the  laws  of  the  countr}-  where  it  is  situated,  which  can 
alone  prescribe  the  mode  by  which  a  title  to  it  can  pass  from  one  per- 
son to  another."  The  same  doctrine  is  held  in  United  States  v.  Crosby, 
7  Cranch,  115,  Kerr  v.  Moon,  9  Wheat.  565,  Darb}'  v.  Mayer,  10  id. 
465,  and  in  man}'  other  cases.  Indeed  the  doctrine  is  unquestioned 
law  everywhere. 
(        Now,  according  to  the  laws  of  the  State  of  New  York  then  and  still 

•  in  force,  a  mortgage  of  real  estate  creates  a  mere  chose  in  action,  a 
'     pledge,  a  security  for  the  debt.     It  conveys  no  title  to  the  property. 

The  claim  of  the  mortgagee  is  a  mere  chattel  interest.  He  has  no  riglit 
to  the  possession  of  the  property.  The  title  and  seisin  remain  in  the 
mortgagor,  and  he  can  maintain  trespass  and  ejectment  against  the 
mortgagee,  if  he  takes  possession  of  the  property  without  the  consent 
of  the  mortgagor.  This  appears  clearly  from  the  following  cases.  ^ 
^^  It  follows,  therefore,  that  while  the  land  in  question  remained  in  the 
)     State  of  New  York,  it  was  incumbered  by  a  mortgage  of  this  character ; 

1  The  learned  judge  here  cited  and  discussed  the  following  eases  :  Gardner  v.  Heartt, 
3  Den.  232  ;  Power  v.  Lester,  23  N.  Y.  527  ;  Trimm  v.  Marsli,  54  N.  Y.  599  ;  Jacksou 
17.  Willard,  4  Johns.  42  ;  Astor  v.  Hoyt,  5  Wend.  603  ;  Kortright  v.  Cady,  21  N.  Y. 
343  ;  Merritt  v.  Bartholick.  36  N.  Y.  44.  —  Ym. 


CHAP.    I.]  CHAPPELL   V.    JAEDINE.  15 

and  when  it  came  into  this  State  it  bore  with  it  the  same  burden  pre- 
ciselj".  There  was  nothing  in  the  change  of  jurisdiction  that  could 
affect  the  contract  of  mortgage  that  had  been  made  between  the  parties. 
The  title  to  the  property  contmued  to  remain  in  the  mortgagor,  and  it 
remains  in  him  still.  This  is  clear.  The  laws  of  this  State  could  nut 
make  a  new  contract  for  the  parties  or  add  to  one  already  made.  They 
had  to  take  the  contract  as  tbe^'  found  it. 

Now  it  is  clear  tbat  there  is  no  remed}"  by  wa}'  of  foreclosure  known 
to  our  law  which  is  adapted  or  appropriate  to  giving  relief  on  a  mort- 
gage of  this  character.  Our  remedy  is  adapted  to  a  mortgage  deed 
which  conveys  the  title  of  tiie  property  to  the  mortgagee,  and  when  thf 
law  day  ha.^  passed,  the  forfeiture,  stated  in  the  deed,  becomes  absolute 
at  law,  and  vesrs  x  full  and  complete  title  in  the  mortgagee,  with  the 
exception  of  the  equitable  right  of  redemption,  which  still  remains  in 
the  mortgagor.  The  object  of  the  decree  of  foreclosure  is,  to  extin- 
guish this  right  of  redemption  if  the  mortgage  debt  is  not  paid  b}'  a 
specified  time.  The  decree  acts  upon  this  right  only.  It  convej'S 
nothing  to  and  decrees  nothing  in  the  mortgage  if  the  debt  is  not  paid. 
After  the  law  day  has  passed  the  right  of  redemption  becomes  a  mere 
cloud  on  the  title  the  mortgagee  then  has,  and  when  it  is  removed  his 
title  becomes  clear  and  perfect.     Phelps  v.  Sage,  2  Da}-,  151  ;  Roath 

IV.  Smith,  5  Conn.   136 ;  Chamberlin  v.  Thompson,  10  id.  244  ;  Porter 

V.  Seelej",  13  id.  564;  Smith  v.  Vincent,  12  id.  1;  Doton  v.  Russell, 
17  id.  151;  Cross  v.  Robinson,  21  id.  379;  Dudley  v.  Caldwell,  19 
id.  218 ;  Colwell  v.  Warner,  36  id.  224. 

What  effect  would  such  a  decree  produce  upon  a  mortgage  like  the 
one  under  consideration,  where  the  legal  title  remains  in  the  mortgagor, 
and  nothing  but  a  pledgee's  interest  is  in  the  mortgagee,  even  after  the 
debt  becomes  due?  It  could  only  extinguish  the  right  of  redemption, 
if  it  could  do  that.  It  could  not  give  the  mortgagee  the  right  of  pos- 
session of  the  property,  for  the  mortgagor  has  still  the  legal  title,  which 
carries  with  it  the  right  of  possession.  It  would  require  another  pro- 
ceeding in  equity,  to  say  the  least,  to  dispossess  him  of  that  title,  and 
vest  it  in  the  mortgagee.  Hence  it  is  clear  that  full  redress  cannot  be 
given  the  plaintiff  in  this  proceeding. 

But  the  plaintiff  has  a  lien  on  the  propert}'  in  the  nature  of  a  pledge 
to  secure  paj^ment  of  the  mortgage  debt.  And  although  our  remed}'  of 
strict  foreclosure  may  not  be  adapted  to  give  redress  to  the  plaintiff 
through  the  medium  of  such  a  lien,  still  a  court  of  equit}'  can  devise  a 
mode  that  will  be  appropriate  ;  for  it  would  be  strange  if  a  lawful  lien 
upon  property  to  secure  a  debt  could  not  be  enforced  according  to  its 
tenor  by  a  court  of  chanceiy.  It  is  said  that  every  wrong  has  its 
remedy  ;  so  it  may  be  said  that  every  case  requiring  equitable  relief 
has  its  corresponding  mode  of  redress.  We  have  no  doubt  that  a  court 
of  equity  has  the  power  to  subject  the  propertv  in  question  to  the  pay- 
ment of  this  debt,  upon  a  proper  complaint  adapted  to  the  purpose. 
When  personal  property  is  pledged  to  secure  the  payment  of  a  debt,  it 


;/ 


16  MORTIMER   V.   NEW   YORK    ELEVATED   RAILROAD   CO.       [CHAP.    L 

ma}'  be  taken  and  sold,  that  payment  may  be  made,  after  giving  the 
pledgor  a  reasonable  opportunil}'  for  redemption.  So  liere,  we  think 
a  similar  course  might  be  taken  with  this  property.  Such  a  course 
would  fall  in  with  the  original  intent  of  the  parties,  and  with  the  civil 
code  and  mode  of  procedure  of  the  State  of  New  York.  Modes  of 
redress  in  that  State  have  of  course  no  force  in  this  State,  but  such  a 
mode  of  procedure  seems  to  be  adapted  to  a  case  of  this  character. 

And  we  farther  think  that  on  an  amended  complaint,  setting  forth 
all  the  essential  facts,  and  praying  that  if  there  shall  be  a  default  in  re- 
deeming the  property  during  such  time  as  the  court  shall  allow  for 
redemption,  then  the  right  of  redemption  shall  be  forever  foreclosed, 
and  the  legal  title  and  possession  of  the  property  be  decreed  in  the 
mortgagee,  such  course  might  be  taken. 

We  think  either  of  the  modes  suggested  might  be  pursued ;  but  inas- 
much as  the  course  which  has  been  taken  leaves  the  legal  title  and  pos- 
session of  the  property  in  the  mortgagor,  we  think  the  court  erred  in 
holding  the  complaint  sufficient,  and  in  passing  the  decree  thereon. 

There  is  error  in  the  judgment  appealed  from,  and  it  is  reversed,  and 
the  case  remanded. 

In  this  opinion  the  other  judges  concurred. 


MORTIMER  V.   NEW  YORK  ELEVATED  RAILROAD  CO. 
Superior  Court  of  the  City  of  New  York.    1SS9. 

[Reported  6  New  York  Supplement,  898.] 

Freedmak,  J.  Tlie  claim  made  in  this  case  by  and  on  behalf  of 
the  elevated  railway  companies  is  that  the  absolute  fee  of  the  street 
known  as  the  "Bower}-"  was,  prior  to  the  surrender  of  the  Dutch 
forces  to  the  English  in  1664,  in  the  Dutch  government;  that  such 
fee  thereafter  went  to  the  State  or  to  the  cit}-  of  New  York  so  abso- 
lutely that  abutting  owners  never  had,  and  do  not  now  have,  any  ease- 
ment of  any  kind  in  said  street,  and  that,  the  elevated  railway  running 
through  the  Bowery  having  been  constructed  with  the  consent  of  both 
tlie  city  and  the  State,  neither  its  owners  nor  its  lessees  are  liable  for 
any  injury  inflicted  upon  abutting  property  by  reason  of  the  construc- 
tion and  operation  of  the  railway. 

The  claim  of  the  English  that  they  were  the  owners,  by  right  of 
discovery,  under  governmental  authority,  of  the  land  of  which  the 
present  city  of  New  York  forms  a  part,  and  that  this  gave  them  such 
exclusive  ownership  that  the  Dutch  government  acquired  no  title  to 
the  land  which  can  be  recognized,  has  been  fully  set  forth  in  the  opin- 
ion of  Judge  Truax.  I  concur  in  his  remarks  as  far  as  they  go,  but 
wish  to  add  the  following,  viz.  :  — 


CHAP.  I.l      MORTIMEK   17.  NEW   YORK    ELEVATED   RAILROAD   CO.  17  .^ 

The  claim  of  the  English,  it  is  true,  has  occasionally  been  criticised 
on  the  ground  that  neither  of  the  Cabots  landed  in  or  near  New  York, 
or  saw  the  coast  of  New  York.  The  right  of  discovery  is  not  recog- 
nized in  the  Roman  law  unless  followed  by  occupation,  or  unless  the 
intention  of  the  sovereign  or  State  to  take  possession  be  declared  or 
made  known  to  the  world.  And  it  must  be  conceded  that  modern 
diplomatists  and  publicists  incline  to  the  opinion  that  mere  transient 
discovery  amounts  to  nothing  unless  followed  in  a  reasonable  time  by 
occupation  and  settlement,  more  or  less  permanent,  under  the  sanction 
of  the  State.  But  the  question  in  the  case  at  bar  is  not  to  be  decided 
according  to  the  rules  of  the  international  law  of  the  present  time.  It 
is  a  question  purely  between  the  public  authorities  of  the  State  of 
New  York  and  citizens  of  the  same  State,  and  as  such  it  is  controlled 
by  the  decisions  referred  to  by  Judge  Truax,  to  the  effect  that 
what  the  English  did  do  was  sufficient  to  give  them  title  by  discovery, 
and  that  such  title  is  superior  to  the  Indian  title.  These  decisions 
proceeded  upon  the  theor}'  that  the  claim  of  the  Dutch  was  contested 
by  the  English  from  the  very  start,  not  because  they  questioned  the  '-«fc*Cu4 
title  given  b}-  discovery,  but  because  they  insisted  on  being  themselves 
the  rightful  claimaiPts  under  that  title ;  and  that  the  claim  of  the 
English  was  finally  decided  in  their  favor  by  the  sword.  That  being 
so,  it  follows  that,  in  contemplation  of  present  law,  neither  the  Dutch 
nor  the  Roman  law  ever  prevailed  in  the  State  of  New  York  de  jure^ 
and  that  the  common  law  of  England  must  be  deemed  to  be  the  origi- 
nal source  of  all  our  law.  And  it  further  follows  that  the  foundations 
of  the  rights  of  owners  of  land  abutting  on  a  street  laid  out  while  the 
Dutch  were  in  possession,  as  against  the  city  or  the  State  of  New  York, 
rest  upon  the  English  common  law,  and  that  they  are  not  to  be  af- 
fected by  the  Dutch  or  Roman  law. 

Reported  cases  in  which  the  validity  of  Dutch  grants  was  upheld 
between  individuals  have  no  application  to  the  present  controversy. 
Now,  under  the  English  common  law,  the  presumption  is  that  the 
owners  of  lands  lying  on  a  highway  are  the  owners  of  the  fee  of  the 
highway  ;  that  the  owners  on  each  side  of  the  highway  own  the  soil 
of  the  highway  in  fee  to  the  centre  of  the  highway  ;  and  that  the  rights 
of  the  public  in  and  to  the  highway  are  no  higher  or  other  than  those 
of  a  mere  easement.  Wager  v.  Railroad  Co.,  25  N.  Y.  529.  This 
presumption  applies  as  well  to  the  streets  of  a  city  as  to  a  country 
highway.  Bissell  v.  Railroad  Co.,  23  N.  Y.  61.  This  presumption 
of  law  is  founded  on  the  supposition  that  the  way  was  originally 
granted  by  the  adjoining  owners  in  equal  proportions.  Watrous  u. 
Southworth,  5  Conn.  305.  But  the  presumption  may  be  rebutted  by 
proof  to  the  contrary,  and  it  is  rebutted  by  the  production  of  a  deed 
under  which  the  owner  derives  title  granting  the  land  to  the  side  of 
the  street  only.  Under  the  operation  of  this  rule,  and  there  being  no 
proof  of  alienation  or  escheat  requiring  a  different  conclusion,  it  must 
be  assumed  in  this  case  that  the  original  grantors  from  whom  plaintiffs' 


18        MORTIMER   V.   NEW  YORK   ELEVATED   RAILROAD   CO.        [CHAP.    L 

title  has  been  derived  owned  the  soil  of  the  Bowery  in  front  of  the 
premises  in  suit  to  the  centre  of  the  street.  But  even  if  the  title  of 
the  English  rested  not  in  discover}-,  but  in  conquest,  and  the  English, 
upon  the  surrender  by  the  Dutch  in  1664,  acquired  from  the  Dutch  a 
title  to  the  then  existing  streets  as  absolute  as  under  the  Roman  law 
the  title  of  the  government  to  a  military  highway  was,  the  fact  would 
not  improve  the  position  of  the  defendants.  Upon  receiving  such 
title  the  English  could  do  with  it  what  they  pleased.  They  were  not 
bound  to  enforce  it  against  abutting  owners,  as  the  Dutch  government 
might  have  enforced  it.  The  presumption  is  tliat  they  took  the  title 
and  the  streets  to  be  held  by  them  according  to  their  own  laws,  and 
as  matter  of  fact  the}^  thereafter  so  dealt  with  said  streets  as  to  admit 
of  no  other  conclusion.  The  province  having  been  granted  by  Charles 
II.  to  his  brother,  the  Duke  of  York,  bv  the  charter  of  1664,  several 
months  before  the  surrender  to  Sir  Richard  NicoUs,  the  grant,  in  order 
to  remove  all  doubt  as  to  its  validity,  was  afterwards  confirmed  b}'  the 
charter  of  1674,  also  granted  to  the  Duke  of  York.  The  object  of 
both  chai'ters  was  to  enable  the  Duke  of  York  to  plant  a  colony  on  this 
continent.  The  charter  of  1664,  issued  under  the  great  seal  of  Eng- 
land, contained  a  provision  that  the  statutes,  ordinances,  etc.,  to  be 
established  by  the  Duke  in  the  new  countr}-,  "  should  not  be  contrary 
to,  but  as  nearly  as  might  be  agreeable  to,  the  laws,  statutes,  and 
government  of  the  realm  of  England."  This  charter  was,  therefore, 
in  itself,  an  explicit  declaration  of  the  King's  will  that  the  laws  of 
England  should  be  established  in  the  colony,  and  that  the  laws  of  the 
Dutch  settlers  should  not  be  retained.  The  consequence  was  that, 
having  obtained  the  lands,  the  English  held  them,  not  under  the 
Dutch  or  the  civil  law,  but  under  the  common  law  of  their  own  coun- 
try. English  law  governed  English  land,  so  that,  even  if  an  absolute 
title  to  a  street  was  obtained,  the  street  was  ever  thereafter  treated  as 
an  English  street,  under  the  common  law.^ 

1  The  learned  judge  then  expressed  the  opinion  that  by  subsequent  acts  of  the  Pro- 
prietor and  of  the  State  the  city  lost  its  rights,  if  any,  to  the  legal  fee. 

In  his  concurring  opinion  Truax,  J.,  said  :  "  I  am  of  the  opinion  that  the  fee  of 
the  Bowery,  and  of  the  other  streets  in  the  city  of  New  York  that  are  known  as  Dutch 
streets,  never  was  in  the  Dutch  government ;  and  that  it  was,  prior  to  the  Eevolution, 
boiind  by  the  rules  of  the  common  law,  and  not  by  the  rules  of  the  Dutch  civil  law. 
While  the  Dutch  were  in  actual  possession  this  execution  of  the  common  law  was 
suspended,  just  as,  during  the  late  Rebellion,  this  execution  of  the  laws  of  the  United 
States  could  not  be  enforced  in  some  of  the  southern  States.  But,  said  the  Supreme 
Court  of  the  United  States  in  Ketchum  v.  Buckley,  99  U.  S.  188,  "the  same  general 
form  of  government,  the  same  general  law  for  the  administration  of  justice  and  the 
protection  of  private  rights  which  had  existed  in  the  States  prior  to  the  Rebelliou,  re- 
mained during  its  continuance  and  afterwards." 

See  Ketchum  v.  Buckley,  99  U.  S.  188,  and  cases  cited.  —  Ed. 


CHAP.  I.] 


MCKENNON    V.    WI>;N. 


19 


McKENNON  v.   WINN. 

StTPREME  Court  of  Oklahoma  Territory.     1893. 
[Reported  1  Oklahoma  Reports,  327.] 

BuRFORD,  J.^  The  appellant  filed  his  complaint  in  the  court  below 
to  enforce  the  specific  performance  of  a  contract  for  the  conveyance  of 
real  estate  situated  in  Oklahoma  City,  Oklahoma  Count}-,  Oklahoma 
Teriitor}'.  A  demurrer  was  filed  to  the  complaint,  alleging  as  grounds  : 
First.  That  the  court  has  no  jurisdiction  of  the  person  of  defendant, 
or  the  subject  of  the  action.  Second.  That  the  complaint  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action.  The  demurrer 
was  sustained,  to  which  the  appellant  excepted  and  brings  the  case  to 
this  court  by  appeal.  .  .  . 

The  second  ground  for  demurrer  presents  two  questions  :  First.  Can 
a  parol  contract  for  the  conveyance  of  real  estate,  or  an  interest 
therein,  made  after  the  settlement  of  this  country,  and  prior  to  the 
adoption  of  our  organic  act,  be  enforced  ?  Second.  Is  a  contract  for 
the  conveyance  of  real  estate,  entered  into  before  title  is  acquired 
from  the  United  States,  and  to  be  executed  after  title  is  acquired,  void, 
as  against  public  policy  ? 

The  first  proposition  seems  to  be  settled  by  the  adjudicated  cases 
and  text  writers  in  favor  of  the  appellant.  "  Every  contract,  on  what- 
ever subject,  may  be  in  oral  words,  which  will  have  the  same  effect  as 
if  written,  except  when  some  positive  rule  of  the  common  or  statutory 
law  has  provided  otherwise."  Bish.  Cont.  §  153  ;  Mallory  v.  Gillett, 
21  N.  Y.  412  ;  Wyman  v.  Goodrich,  26  Wis.  21  ;  Green  v.  Brookins, 
23  Mich.  48  ;  AYhite  v.  Maynard,  111  Mass.  250.  By  the  common  law, 
prior  to  the  enactment  of  the  statute  of  frauds  (29  Car.  II.  c.  3,  A. 
D.  1676),  contracts  for  the  sale  of  real  estate,  or  an  interest  therein, 
were  not  required  to  be  in  writing.  Bish.  Cont.  §  1231  ;  4  Kent 
Com.  p.  450.  The  Elnglish-speaking  people  brought  the  conimon  law 
to  America  with  them,  in  the  first  settlement  of  the  colonies ;  and  it 
has  prevailed  in  all  the  States  and  Territories,  modified  b}-  legislative 
acts,  local  conditions,  and  such  of  the  English  statutes  adopted  prior 
to  the  settlement  of  our  colonies  as  were  of  general  application,  and 
suited  to  our  conditions,  except  in  some  portions  where  the  French  or 
civil  law  prevailed.  At  the  time  of  the  settlement  and  discovery  of 
America  the  statute  of  frauds  had  not  been  adopted,  and  has  only 
become  the  law  of  the  United  States,  or  of  our  several  States  and 
Territories,  by  legislative  enactment. 

This  leads  us  to  the  inquiry',  Did  the  common  law  prevail  in  the 
Territory  in  April,  1889?  It  is  contended  that  prior  to  the  settlement 
of  Oklahoma,  and  until  the  same  was  superseded  by  statutory  laws, 

^  Part  of  the  opinion  is  omitted,  —  Ed. 


III. 


''^^-(L, 


S^C&Xu/(jC  i 


1 


t 


20  McKENNON   V.   WINN.  [CHAP.   I. 

the  Code  Napoleon,  or  civil  law,  prevailed.  Whatever  may  have 
been  the  laws  of  the  country  now  known  as  Oklahoma,  they  ceased 
to  operate  in  the  region  originally  coinprising  the  Indian  Territory 
when  the  Territory  ceased  to  be  a  part  of  the  Territory  of  Louisi- 
ana, and  the  laws  of  the  Territory  of  Indiana  and  the  Territory  of 
Missouri,  which  may  have  once  prevailed  in  said  region,  became 
inoperative  in  and  ceased  to  have  any  force  or  effect  in  the  Indian 
Territory,  when  that  Territory  ceased  to  be  a  part  of  said  Territories. 
Kailroad  Co.  v.  O'Loughlin,  49  Fed.  Rep.  440.  There  was  no  law  in 
the  Indian  Territory  regulating  the  making  of  contracts  at  the  time  of 
the  approval  of  the  Act  of  Congress  establishing  a  United  States  dis- 
trict court  in  said  Territory-  by  the  act  of  March  1,  1889.  25  Stat,  783. 
Congress,  with  the  assent  of  the  Indians,  created  the  court  for  the 
whole  of  the  Indian  Territory,  which  included  Oklahoma,  and  con- 
ferred on  it  jurisdiction  in  all  civil  cases  between  citizens  of  the  United 
States  who  are  residents  of  the  Territory,  or  between  citizens  of  the 
United  States  or  of  any  State  or  Territory,  and  any  citizen  of,  or  person 
jETvv^  residing  or  found  in,  the  Indian  Territor}'.     It  gave  the  court  author- 

vj  ity,  and  imposed  upon  it  the  duty,  to  apply  the  established  rules  and 

principles  of  the  common  law  to  the  adjudication  of  those  cases  of 
which  it  was  given  jurisdiction.  Pj'eatt  v.  Powell,  51  Fed.  Rep.  551. 
But  if  it  be  held  that  the  establishment  of  a  United  States  court  in  the 
Indian  Territory  did  not  put  the  common  law  in  force  in  said  Territory', 
'  except  in  so  far  as  was  necessary  to  execute  the  powers  of  said  court, 

yx  ,  and  for  the  adjudication  of  such  cases  as  actually  went  into  that  forum, 

then  there  was  no  law  in  Oklahoma,  at  the  date  of  its  settlement, 
regulating  the  making  of  contracts.  If  this  should  be  conceded,  then 
it  necessarily  follows,  on  principle,  that  when  people  from  all  parts  of 
the  United  States,  on  the  22d  day  of  April,  1889,  settled  the  country 
known  as  Oklahoma,  built  cities,  towns,  and  villages,  and  began  to 
carry  on  trade  and  commerce  in  all  its  various  branches,  they  brought 
into  Oklahoma,  with  them,  the  established  principles  and  rules  of  the 
common  law,  as  recognized  and  promulgated  by  the  American  courts, 
and  as  it  existed  when  imported  into  this  country  by  our  early  settlers, 
and  unmodified  by  American  or  English  statutes.  So  that,  in  any 
event,  the  common  law  prevailed  in  Oklahoma  at  the  time  the  con- 
tract between  the  appellant  and  appellee  was  entered  into  ;  and  as,  at 
common  law,  contracts  for  the  sale  and  conveyance  of  real  estate  were 
not  required  to  be  in  writing,  the  contract  mentioned  in  the  complaint 
may  be  enforced,  unless  void  for  other  reasons.^ 

1  The  contract  was  held  not  to  ho  void  on  the  ground  alleged:  the  court  followed 
on  this  poiut  Lamb  v.  Davenport,  18  Wall.  307.  —  Ed. 


;n 


CHAP.   I.] 


LAWTON    V.   STEELE. 


21 


LAWTON  V.  STEELE. 
CouKT  OF  Appeals,  New  York,  1890. 

[Reported  119  N.   Y.  226.] 

This  action  was  brought  to  recover  the  value  of  sixteen  hoop  or 
fyke  nets  belonging  to  plaintiffs,  which  were  destroyed  by  defendant. 

Andrews,  J.  The  point  of  difference  between  the  trial  court  and 
the  General  Term  relates  to  the  constitutionality  of  the  second  section 
of  the  Act  of  1880,  as  amended  in  1883.^  That  section  is  as  follows: 
"  Sec.  2.  Any  net  found,  or  other  means  or  device  for  taking  or  capturing 
fish,  or  whereby  they  may  be  taken  or  captured,  set,  put,  floated,  had, 
found  or  maintained  in  or  upon  any  of  the  waters  of  this  state,  or  upon 
the  shores  or  islands  in  any  waters  of  this  state,  in  \aolation  of  any  exist- 
ing or  hereafter  enacted  statutes  or  laws  for  the  protection  of  fish, 
is  hereby  declared  to  be,  and  is  a  public  nuisance,  and  may  be  abated 
and  smnmarily  destroyed  by  any  person,  and  it  shall  be  the  duty 
of  each  and  every  (game  and  fish)  protector  aforesaid  and  of  every 
game  constable,  to  seize  and  remove  and  destroy  the  same,  .  .  .  and 
no  action  for  damages  shall  be  maintained  against  any  person  for  or 
on  account  of  any  such  seizure  or  destruction."  The  defendant  justi- 
fied the  seizure  and  destruction  of  the  nets  of  plaintiff,  as  a  game 
protector,  under  this  statute,  and  established  the  justification,  if  the 
legislature  had  the  constitutional  power  to  authorize  the  summary 
remedy  provided  by  the  section  in  question.  The  trial  judge  held 
the  act  in  this  respect  to  be  unconstitutional,  and  ordered  judgment 
in  favor  of  the  plaintiffs  for  the  value  of  the  nets.  The  General  Term 
sustained  the  constitutionality  of  the  statute  and  reversed  the  judg- 
ment. We  concur  with  the  General  Term  for  reasons  which  will  now 
be   stated. 

The  legislative  power  of  the  state  which  by  the  Constitution  is 
vested  in  the  senate  and  assembly  (§  1,  art.  3),  covers  every  subject 
which  in  the  distribution  of  the  powers  of  government  between  the 
legislative,  executive  and  judicial  departments,  belongs  by  practice 
or  usage,  in  England  or  in  this  country,  to  the  legislative  department, 
except  in  so  far  as  such  power  has  been  withheld  or  limited  by  the 
Constitution  itself,  and  subject  also  to  such  restrictions  upon  its  ex- 
ercise as  may  be  found  in  the  Constitution  of  the  United  States. 
From  this  grant  of  legislative  power  springs  the  right  of  the  legislature 
to  enact  a  criminal  code,  to  define  what  acts  shall  constitute  a  criminal 
ofl'ense,  what  penalty  shall  be  inflicted  upon  offenders,  and  generally 
to  enact  all  laws  which  the  legislature  shall  deem  expedient  for  the 
protection  of  public  and  private  rights,  and  the  prevention  and  pun- 
ishment of  public  wrongs.     The  legislature  may  not  declare  that  to 

'  Only  so  much  of  the  case  as  relates  to  the  power  to  enact  a  statute  is  printed. — Ed. 


22      LEE   V.  BUDE    AND    TORRINGTON    JUNCTION    RAILWAY.       [CIIAP.   I. 

be  a  crime  which  in  its  nature  is  and  must  be  under  all  circumstances 
innocent,  nor  can  it  in  defining  crimes,  or  in  declaring  their  punish- 
ment, take  away  or  impair  any  inalienable  right  secured  by  the  Con- 
stitution. But  it  may,  acting  within  these  limits,  make  acts  criminal 
which  before  were  innocent,  and  ordain  punishment  in  future  cases 
where  before  none  could  have  been  inflicted.  This,  in  its  nature,  is 
a  legislative  power,  which,  by  the  Constitution  of  the  state,  is  com- 
mitted to  the  discretion  of  the  legislative  body.  (Barker  v.  People, 
3  Cow.  686;  People  r.  West,  106  N.  Y.  293.)  The  act  in  question  de- 
clares that  nets  set  in  certain  waters  are  public  nuisances,  and  author- 
izes their  summary  destruction.  The  statute  declares  and  defines 
a  new  species  of  public  nuisance,  not  known  to  the  common  law,  nor 
declared  to  be  such  by  any  prior  statute.  But  we  know  of  no  limi- 
tation of  legislative  power  which  precludes  the  legislature  from  en- 
larging the  category  of  public  nuisances,  or  from  declaring  places  or 
property  used  to  the  detriment  of  public  interests  or  to  the  injury  of 
the  health,  morals  or  welfare  of  the  community,  public  nuisances, 
although  not  such  at  common  law.  There  are,  of  course,  limitations 
upon  the  exercise  of  this  power.  The  legislature  cannot  use  it  as 
a  cover  for  withdrawing  property  from  the  protection  of  the  law,  or 
^  arbitrarily,  where  no  public  right  or  interest  is  involved,  declare 
property  a  nuisance  for  the  purpose  of  devoting  it  to  destruction. 
If  the  court  can  judicially  see  that  the  statute  is  a  mere  evasion,  or 
was  framed  for  the  purpose  of  individual  oppression,  it  will  set  it  aside 
as  unconstitutional,  but  not  otherwise.  {In  re  Jacobs,  98  N.  Y.  98; 
Mugler  v.  Kansas,  123  U.  S.  661.) 


LEE   V.   BUDE   AND   TORRINGTON  JUNCTION    RAILWAY. 

Court  of  Common  Pleas,  1871. 

[Reported  L.  R.  6  C.  P.  576.] 

WiLLES,  J.^  This  is  an  application  for  a  writ  of  sci.  fa.  to  try  the 
question  whether  two  persons  as  shareholders  in  the  Bude  and  Tor- 
riivgton  Junction  Railway  Company  are  bound  to  pay  to  the  plaintiffs 
so  much  as  may  remain  unpaid  upon  their  respective  shares,  in  dis- 
charge of  a  debt  in  respect  of  which  the  plaintiffs  have  obtained  a 
judgment  against  the  company  pursuant  to  8  &  9  Vict.  c.  16,  s.  36.  .  .  . 

It  is  further  urged  that  the  company  was  a  mere  nonentity,  and 
there  never  were  any  shares  or  shareholders.  That  resolves  itself 
into  this,  that  parliament  was  induced  by  fraudulent  recitals  (intro- 
duced, it  is  said,  by  the  plaintiffs,)  to  pass  the  Act  which  formed  the 
company.  I  would  observe,  as  to  these  Acts  of  Parliament,  that 
they  are  the  law  of  this  land;  and  we  do  not  sit  here  as  a  court  of 
^  Part  of  the  opinion  only  is  given. — Ed. 


CHAP.  I.]  STATE   V.    KNIGHT.  23 

appeal  from  parliament.  It  was  once  said,  —  I  think  in  Hobart 
—  that,  if  an  Act  of  Parliament  were  to  create  a  man  judge  in  his 
own  case,  the  Court  might  disregard  it.  That  dictum,  however, 
stands  as  a  warning,  rather  than  an  authority  to  be  followed.  iWe 
sit  here  as  servants  of  the  Queen  and  the  legislature.  Are  we  to  act 
as  regents  over  what  is  done  by  parliament  with  the  consent  of  the 
Queen,  lords,  and  commons?  I  deny  that  any  such  authority  exists. 
If  an  Act  of  Parliament  has  been  obtained  improperly,  it  is  for  the 
legislature  to  correct  it  by  repealing  it;  but,  so  long  as  it  exists  as  law, 
the  Courts  are  bound  to  obey  it.  The  proceedings  here  are  judicial, 
not  autocratic,  which  they  would  be  if  we  could  make  laws  instead 
of  administering  them.  The  Act  of  Parliament  makes  these  persons 
shareholders,  or  it  does  not.  If  it  does,  there  is  an  end  of  the  question. 
If  it  does  not,  that  is  a  matter  which  may  be  raised  by  plea  to  the  sci. 
fa.  Having  neglected  to  take  the  proper  steps  at  the  proper  time  to 
prevent  the  Act  from  passing  into  a  law,  it  is  too  late  now  to  raise 
any   objections   to   it. 


STATE   V.  KNIGHT. 
Superior  Court  of  North  Carolina.     1799. 

[Reported  2  Haywood,  109.] 

He  was  indicted  of  passing  counterfeit  bills  of  credit,  of  the  likeness 
of  the  genuine  bills  of  credit  of  this  state,  in  Virginia.  The  indictment 
was  drawn  upon  the  Act  of  1784,  c.  25,  §  4  :  "  And  whereas  there  is  ^ 

reason  to  apprehend  that  wicked  and  ill-disposed  persons  resident  in    (^vfuidiU^ 
the  neighboring  states  make  a  practice  of  counterfeiting  the  current    , 
bills  of  credit  of  this  state,  and  by  themselves  or  emissaries  utter  or 
vend  the  same  with  an  intention  to  defraud  the  citizens  of  this  state  :     "''^io.j'v-  ^'^  ' 
Be  it  therefore  enacted  that  all  such  persons  shall  be  subject  to  the       0"ltrvy  i*j'i''' 
same  mode  of  trial,  and  on  conviction  liable  to  the  same  pains  and 
penalties,  as  if  the  offence  had  been  committed  witliin  the  limits  of  this     1,  MxJl> 

state,  and  be  prosecuted  in  the  Superior  Court  of  any  district  within  ,,  •  /»-p,. 

this  state."     And  he  was  convicted.  <  '_      a    ^    • 

Per  curiam.  This  state  cannot  declare  that  an  act  done  in  Virginia  ''^M/U.k.^  (UJOIjla 
by  a  citizen  of  Virginia  shall  be  crimmal  and  punishable  in  this  state. 
Our  penal  laws  can  only  extend  to  the  limits  of  this  State,  except  as  to 
our  own  citizens.  But  granting  that  our  Legislature  could  enact  laws 
for  the  punishment  of  offences  committed  in  Virgniia,  still  this  clause 
only  extends  by  implication  to  acts  done  in  Virginia ;  and  no  penal 
law  can  be  construed  by  implication,  nor  otherwise  than  by  the  express 
letter. 

He  was  discharged.* 

1  Ace.  People  v.  Merrill,  2  Park,  590.  —  Ed. 


24  HANKS  V.    STATE.  [CHAP.  I. 

HANKS   V.  STATE. 

Court  of  Appeals  of  Texas.     1882. 

[Reported  13  Tex.  App.  289.] 

^^  White,  P.  J.     There  is  but  a  single  question  which  we  think  is  in- 

iM  /^  volved  in  and  requires  discussion  on  this  appeal. 

^^^^  Appellant  and  one  P.  Dillman  were  jointl}-  indicted  in  the  District 

Court  of  Travis  County  for  the  forgery-  of  a  transfer  of  a  land  certificate 
for  a  league  and  labor  of  land  in  the  State  of  Texas.  It  is  alleged  in 
the  indictment  that  the  acts  constituting  the  forgery  were  all  committed 
in  Caddo  parish,  in  the  State  of  Louisiana.  No  act  or  thing  connected 
with  the  execution  of  the  forgery  is  charged  to  have  been  done  in 
Texas  ;  but  the  crime  and  injury,  so  far  as  this  State  is  concerned,  are 
averred  to  consist  in  the  fact  that  the  said  forgery  in  Louisiana  "did 
then  and  there  relate  to  and  affect  an  interest  in  land  in  the  State 
of  Texas,  .  .  .  and  would,  if  the  same  were  true  and  genuine,  have 
transferred  and  affected  certain  property,  to  wit,  a  certain  land  certifi- 
cate, number  222,  for  one  league  and  labor  of  land  in  the  State  of 
Texas,"  etc. 

This  indictment  was  brought  under  Article  451  of  the  Penal  Code. 

B}'  Article  454  of  the  Code  it  is  declared  that  "persons  out  of  the 
State  may  commit  and  be  liable  to  indictment  and  conviction  for  com- 
mitting an}'  of  the  offences  enumerated  in  this  chapter  which  do  not 
in  their  commission  necessarily  require  a  personal  presence  in  this 
State,  the  object  of  this  chapter  being  to  reach  and  punish  all  persons 
offending  against  its  provisions,  whether  within  or  without  this  State," 
etc. 

It  was  made  a  ground  both  in  the  motion  to  quash  the  indictment 
and  in  arrest  of  judgment,  and  is  again  urgent!}'  insisted  upon  in  the 
able  brief  of  counsel  for  appellant,  that  the  facts  alleged,  if  true,  would 
constitute  an  offence  against  the  sovereign  State  of  Louisiana  alone, 
and  one  of  which  the  courts  of  this  State  would  have  no  jurisdiction. 

If  the  position  thus  assumed  in  behalf  of  appellant  be  correct,  then 
the  Legislature  had  no  authority  to  pass  the  act  quoted,  and  the  same 
is  an  absolute  nullity.  Can  this  proposition  be  maintained?  It  cer- 
tainly cannot  be  found  in  any  constitutional  inhibition.  State  or  Federal, 
depriving  the  Legislature  of  the  authority,  and  unless  there  is  some 
authority  of  law  superior  to  the  right  of  a  State  Legislature,  wliich 
could  and  should  control  the  action  of  the  latter  within  the  scope  of  its 
constitutional  powers,  we  cannot  well  conceive  how  its  enactments,  if 
reasonable  and  consistent  with  that  power,  could  be  held  inoperative 
and  nugatory. 

Two  authorities,  which  are  to  the  effect  that  "  the  Legislature  of  one 
State  cannot  define  and  punish  crimes  committed  in  another  State,"  are 
mainly  relied  upon.  The  leading  one  is  the  case  of  the  State  v.  Knight, 
taken  from  2  Haywood,  and  reported  in  Taylors  North  Carolina  Re- 


CHAP.  I.]  HANKS   V.    STATE.  25 

ports,  page  44.  The  other  is  People  v.  Merrill,  2  Park's  Criminal 
Reports,  590.  The  defendant  in  the  first  case  was  indicted  under  a 
statute  the  words  of  which  were :  "  And  whereas  there  is  reason  to 
apprehend  that  wicked  and  ill  disposed  persons  resident  in  the  neigh- 
boring States  make  a  practice  of  counterfeiting  the  current  bills  of 
credit  of  this  State,  and  by  themselves  or  emissaries  utter  or  vend  the 
same,  with  an  intention  to  defraud  the  citizens  of  this  State:  Be  it 
enacted,  etc.,  that  all  such  persons  shall  be  subject  to  the  same  mode 
of  trial,  and  on  conviction  liable  to  the  same  pains  and  penalties  as  if 
the  offence  had  been  committed  within  the  limits  of  this  State  and 
prosecuted  in  the  superior  court  of  an}'  district  of  this  State."  It  was 
held  that  the  jurisdiction  to  try  in  North  Carolina  was  doubtful,  and 
the  prisoner  was  discharged. 

Mr.  Wharton,  in  his  work  on  the  Conflict  of  Laws,  says:  "The 
sturdiest  advocates  of  the  hypothesis  that  the  /ocus  delicti  alone  confers 
jurisdiction  have  admitted  that  there  are  cases  in  which  a  person  whose 
residence  is  outside  the  territor}-  may  make  himself,  by  conspiring  extra- 
territoriall}-  to  defeat  its  laws,  infra-territorially   responsible.     If,  for  \ 

instance,  a  forger  should  estabUsh  on  the  Mexican  side  of  the  boundary 
between  the  United  States  and  Mexico  a  manufactory-  for  the  forgery 
of  United  States  securities,  for  us  to  hold  that  when  the  mischief  is 
done  he  can  take  up  his  residence  in  the  United  States  without  even 
liabilit}'  to  arrest,  would  not  merely  expose  our  government  to  spolia- 
tion, but  bring  its  authority  into  contempt.  To  say  tliat  in  such  a  case 
the  Mexican  government  can  be  relied  upon  to  punish  is  no  answer ; 
because,  first,  in  countries  of  such  imperfect  civilization,  penal  justice  ' 
is  uncertain  ;  secondly,  in  cases  where,  in  such  country,  the  local  com- 
munit}'  gains  greatly  by  the  fraud  and  suffers  by  it  no  loss,  the  chances  o 
of  conviction  and  punishment  would  be  peculiarh-  slight ;  and,  thirdly, 
because  all  that  the  offender  would  have  to  do  to  escape  justice  in  such 
a  case  would  be  to  walk  over  the  boundary  line  into  the  United  States, 
where  on  this  hypothesis  he  would  go  free."  (Whart.  Conflict  of  Laws, 
sec.  876.)  Again  he  says  :  "•  Thus  it  has  been  held  that  the  originator 
of  a  nuisance  to  a  stream  in  one  countiy  which  affects  such  stream  in 
another  country  is  liable  to  prosecution  in  the  latter  country ;  that  the 
author  of  a  libel  uttered  by  him  in  one  country  and  published  b\-  others 
in  another  country  from  which  he  is  absent  at  the  time,  is  liable  in  the 
latter  country;  that  he  who  on  one  side  of  a  boundary  shoots  a  person 
on  the  other  side  is  amenable  in  the  country  where  the  blow  is  received; 
that  he  who  in  one  State  employs  an  innocent  agent  to  obtain  goods  by 
false  pretenses  in  another  State  is  amenable  in  the  latter  State  ;  and 
that  he  who  sells  through  agents,  guilty  or  innocent,  lottery  tickets  in 
another  State  is  amenable  in  the  State  of  the  sale,  though  he  was  absent 
from  such  State  personally.  In  England  we  have  the  same  principle 
affirmed  by  the  highest  judicial  authority."  And  he  quotes  Lord  Camp- 
bell as  saying,  •'  that  a  person  ma}',  by  the  employment  as  well  of  a 
conscious  as  of  an  unconscious  agent,  render  himself  amenable  to  the 


3 


26  HANKS    V.    STATE.  [CHAP,    I. 

law  of  England  when  he  comes  within  the  jurisdiction  of  our  courts  ;  " 
and  Sir  R.  Philliraore  as  saying,  "It  is  a  monstrous  thing  that  an}- 
technical  rule  of  venue  should  prevent  justice  from  being  done  in  this 
countr}'  on  a  criminal  for  an  offence  which  was  perpetrated  here  but  the 
execution  of  which  was  concocted  in  another  country."  (Whart.  Con- 
flict of  Laws,  sec.  877.  See  also  Adams  v.  People,  1  Comstock  N.  Y. 
173;  Commonwealth  v.  McLoon.  101  Mass.  1 ;  Ham  v.  State,  4  Texas 
Ct.  App.  645;  Rogers  r.  The  State,  10  Texas  Ct.  App.  655.) 

Mr.  Cooley,  in  his  great  work  on  Constitutional  Limitations,  treating 
of  territorial  limitation  to  legislative  authority,  says:  "  The  legislative 
authority  of  everv  State  must  spend  its  force  within  the  territorial 
limits  of  the  State.  ...  It  cannot  provide  for  the  punishment  as  crimes 
of  acts  committed  bej'ond  the  State  boundar}',  because  such  acts,  if 
offences  at  all,  must  be  offences  against  the  sovereignt}-  within  whose 
limits  they  have  been  done."  But,  after  lading  down  this  doctrine,  in 
the  very  next  sentence  he  says :  "  But  if  the  consequences  of  an  un- 
lawful act  committed  outside  the  State  have  reached  their  ultimate  and 
injurious  result  within  it,  it  seems  that  tiie  perpetrator  ma\'  be  pun- 
ished as  an  offender  against  such  State."  (Cooley's  Const.  Lim.,  4  ed., 
pp.  154-55.)  If  this  latter  rule  be  the  law,  then  it  is  a  solecism  to  say 
that  the  legislature  cannot  so  declare  it  by  express  enactment. 

Story,  in  his  Conflict  of  Laws,  says:  "•  Although  the  penal  laws  of 
every  country"  are  in  tlieir  nature  local,  yet  an  offence  may  be  com- 
mitted in  one  sovereignty  in  violation  of  the  laws  of  another,  and  if  the 
offender  be  afterwards  found  in  the  latter  State,  he  may  be  punished 
according  to  the  laws  thereof,  and  the  fact  that  he  owes  allegiance  to 
another  sovereignly  is  no  bar  to  the  indictment."  (Story  on  the  Con- 
flict of  Laws,  4  ed..  section  6256.) 

The  offence  charged  in  the  indictment  against  appellant  comes  clearh' 
within  the  terms  of  Article  454  of  the  Penal  Code.  Had  it  been  com- 
mitted b\'  one  of  our  own  citizens  within  this  State,  there  then  could 
be  no  question  as  to  his  liability.  Here,  the  defendant  in  effect 
says :  "  You  may  try  and  convict  your  own  citizens  for  the  same  act 
I  have  committed,  but  you  cannot  try  and  punish  me,  because  what  I 
have  done,  though  equalh"  as  violative  of  the  spirit  and  letter  of  the 
law,  is  still  not  triable  in  your  court  because  it  was  committed  in  another 
State,  and  your  Legislature  could  not  pass  a  law  which  could  embrace 
me  within  its  pains  anci  penalties."  We  can  see  no  valid  reason  why 
the  Legislature  of  the  State  of  Texas  could  not  assert,  as  it  has  done  in 
Article  454  supra,  her  jurisdiction  over  wrongs  and  crimes  with  regard 
to  the  land  titles  of  the  State,  no  matter  whether  the  perpetrator  of  the 
crime  was  at  the  time  of  its  consummation  within  or  without  her  terri- 
torial limits.  Such  acts  are  offences  against  the  State  of  Texas  and 
her  citizens  only,  and  can  properly  be  tried  only  in  her  courts.  It  may 
in  fact  be  no  crime  against  the  State  in  which  it  is  perpetrated ;  and  if 
it  is,  under  such  circumstances  as  we  are  considering,  that  other  State 
would  have  no  interest  in  punishing  it,  and  would  rarely  if  ever  do  s(j. 


CHAP.  I.]  HANKS    V.    STATE.  27 

When  this  forgery  was  committed  in  Louisiana,  eo  instanti  a  crime  was     1    '  '1 

committed  against,  and  injury  done  to,  the  State  of  Texas,  because  it      ' 
affected  title  to  lands  within  her  sovereignty. 

Our  conclusion  is  that  the  Legislature  had  authority  to  adopt  the  act 
in  question ;  that  the  same  is  in  violation  of  no  law  superior  thereto ; 
and  that  the  jurisdiction  thereby  conferred  can  be  rightly  exercised  by 
the  courts  of  this  State.  The  defendant  appears  to  us  to  come  clearly 
within  the  scope  of  that  jurisdiction.  He  has  been,  as  far  as  we  can 
see,  fairly  and  impartially  tried  under  the  law,  and  legally  convicted 
according  to  the  evidence  exhibited  in  tlie  record.  We  have  found  no 
error  for  which  a  reversal  of  the  judgment  should  be  had,  and  it  is 
therefore  affirmed.  Affirmed. 

Hurt,  J.,  dissents  upon  the  ground  that  the  Legislature  bad  no 
authority  to  pass  Article  454,  Penal  Code. 


Lamar,  J.,  in  Lake  County  v.  Rollins,  130  U.  S.  662  (1889).  .  .  .     (:7vU^^:4^ 
We  are  unable  to  adopt  the  constructive  interpolations  ingeniously      J?      I    t   \' 
offered  by  counsel  for  defendant  in  error.     Why  not  assume  that    ^'    fy.;-///,/^  ; 
the  framers  of  the  constitution,  and  the  people  who  voted  it  into 
existence,  meant  exactly  what  it  says?     At  the  first  glance,  its  read-    '      ',  ,  ,  { 
ing  produces  no  impression  of  doubt  as  to  the  meaning.     It  seems  all 
sufficiently  plain;  and  in  such  case  there  is  a  well-settled  rule  which         '-'  ■' 
we  must  observe.     The  object  of  construction,  applied  to  a  constitu-  /— 

tion,  is  to  give  effect  to  the  intent  of  its  framers,  and  of  the  people  ^^-w^^-M/ 

in  adopting  it.    This  intent  is  to  be  found  in  the  instrument  itself;  and  ■'  CiL£^^;;^y^ 

when  the  text  of  a  constitutional  pro\'ision  is  not  ambiguous,   the 
courts,  in  giving  construction  thereto,  are  not  at  liberty  to  search    | 
for  its  meaning  beyond  the  instrument.  J 

To  get  at  the  thought  or  meaning  expressed  in  a  statute,  a  con- 
tract or  a  constitution,  the  first  resort,  in  all  cases,  is  to  the  natural 
signification  of  the  words,  in  the  order  of  grammatical  arrangement 
in  which  the  framers  of  the  instrument  have  placed  them.     If  the  ~j 
words  convey  a  definite  meaning  which  involves  no  absurdity,  nor  any 
contradiction  of  other  parts  of  the  instrument,  then  that  meaning,  ap-  ) 
parent  on  the  face  of  the  instrument,  must  be  accepted,  and  neither  the 
courts  nor  the  legislature  have  the  right  to  add  to  it  or  take  from  it.J 
Newell  V.  People,  7  N.  Y.  9,  97;  Hills  ».  Chicago,  60  Illinois,  86;  Denn 
t'.  Reid,  10  Pet.  524;  Leonard  v.  Wiseman,  31  Maryland,  201,  204; 
People  V.  Potter,  47  N.  Y.  375;  Cooley  Const.  Lim.  57;  Story  on  Const. 
§400;  Beardstown  x\  Virginia,  76  Illinois,  34.     So,  also,  where  a  law^ 
is  expressed  in  plain  and  unambiguous  terms,  whether  those  terms  \ 
are  general  or  limited,  the   legislature  should   be  intended  to  mean    \ 
what  they  have  plainly  expressed,  and  consequently  no  room  is  left    1 
for  construction.    United  States  v.  Fisher,  2  Cranch,  358,  399;  Doggett' 
V.  Florida  Railroad,  99  U.  S.  72. 


28  COMMONWEALTH    V.    CHURCHILL.  [CHAP.  I, 

Miller,  J.,  in  People  v.  Lacombe,  99  N.  Y.  43  (1SS.5).  ...  In  the 
interpretation  of  statutes,  the  great  principle  which  is  to  control  is  the 
intention  of  the  legislature  in  passing  the  same,  which  intention  is 
(i  to  be  ascertained  from  the  cause  or  necessity  of  making  the  statute 

"  ^'  as  well  as  other  circumstances.     A  strict  and  literal  interpretation  is 

not  always  to  be  adhered  to,  and  where  the  case  is  brought  within  the 
intention  of  the  makers  of  the  statute,  it  is  within  the  statute,  al- 
though by  a  technical  interpretation  it  is  not  within  its  letter.  It 
is  the  spirit  and  purpose  of  a  statute  which  are  to  be  regarded  in  its 
interpretation;  and  if  these  find  fair  expression  in  the  statute,  it  should 
be  so  construed  as  to  caijy  out  the  legislative  intent,  even  although 
such  construction  is  contrary  to  the  literal  meaning  of  some  provisions 
of  the  statute.  A  reasonable  construction  should  be  adopted  in  all 
cases  where  there  is  a  doubt  or  uncertainty  in  regard  to  the  intention 
of  the  lawmakers.  These  general  rules  are  upheld  by  numerous  au- 
thorities. (People,  ex  rel.  23d  Street  R.  R.  Co.  v.  Commissioners  of 
Taxes,  95  N.  Y.  558;  Burch  v.  Newbury,  10  id.  389;  Oswego  Starch 
Factory  v.  Dolloway,  21  id.  461;  People  v.  N.  Y.  C.  R.  R.  Co.,  13  id.  78; 
Donaldson  v.  Wood,  22  Wend.  397;  Watervliet  T.  Co.  v.  McKean,  6 
Hill,  619;  3  Bingham,  193;  Commonwealth  v.  Kimball,  24  Pick.  370.) 
While  the  rules  stated  are  specially  applicable  in  considering  the 
phraseology  of  statutes,  they  may  also  be  properly  invoked  where 
several  statutes  are  passed  relating  to  the  same  general  subject.  In 
Commonwealth  v.  Kimball  (supra),  it  is  said  by  Shaw,  C.  J.,  that 
"where  any  particular  construction  would  lead  to  an  absurd  conse- 
quence, it  will  be  presumed  that  some  exception  or  qualification  was 
intended  by  the  legislature  to  avoid  such  conclusion."  Where  it 
is  apparent  that  a  strict  construction  of  a  statute  would  defeat  the 
main  purpose  and  object,  not  only  of  the  statute,  but  of  other  legisla- 
tive enactments  which  relate  to  the  same  subject,  and  which  have 
been  enacted  in  pursuance  of  and  according  to  a  general  purpose  of 
accomplishing  a  particular  result,  such  interpretation  should  not 
be  upheld,  as  it  would  be  absurd  to  say  that  the  lawmakers  designed 
to  secure  a  result  which  would  be  antagonistic  to  their  plain  and  clear 
intention. 


COMMONWEALTH   v.   CHURCHILL. 
Supreme  Judicial  Court  of  Massachusetts.     1840. 

[Reported  2  Met.  118.] 

At  the  last  September  term  of  the  Court  of  Common  Pleas,  the  de- 
fendant was  convicted  on  four  counts  in  an  hidictment,  the  first  of 
which  alleged  that  he,  "  at  Stoughton  in  said  County  of  Norfolk,  on  the 


CHAP.  I.] 


COMMONWEALTH   V.  CHURCHILL. 


29 


16th  day  of  March  last  past,  did  sell  to  one one  glass  of  brandy 

to  be  by  him,  the  said ,  then  and  there  used,  consumed,  and  drank 

in  the  dwelling-house  there  situate  of  him  the  said  Samuel,  he  the  said 
Samuel  not  being  tlien  and  there  duly  licensed,  according  to  law,  to  be 
an  innholder  or  common  victualler;  against  the  peace,  etc.,  and  con- 
trary to  the  statute  in  such  case  made  and  provided."  There  were  five 
other  counts  similar  to  the  first,  except  that  different  kinds  of  spirituous 
liquor  were  alleged  to  have  been  sold  to  five  different  persons  on  sev- 
eral different  days,  to  wit,  on  the  17th,  18th,  19th.  2()tli,  and  21st  of 
March,  1840.     On  two  of  the  counts  the  defendant  was  acquitted. 

The  defendant  filed  exceptions  to  the  ruling  of  Strong,  J.,  before 
■whom  the  trial  was  had:  ''  1.  Because  the  court  instructed  the  jury 
that  the  2d  and  3d  sections  of  c.  47  of  the  Revised  Statutes,  on  which 
the  indictment  is  founded,  are  binding  and  valid,  when  the  defendant 
contends  that  they  are  unconstitutional  and  void.  2.  Because  the 
■court  instructed  the  jur}'  that  those  sections  were  still  in  force  as  law, 
when  the  defendant  contends  that  they  are  repealed  by  subsequent, 
legislative  enactments."  ^ 

Shaw,  C.  J.  It  appears  by  the  record  that  the  defendant  was  in- 
dicted for  selling  spirituous  liquors  without  license,  on  the  IGth  day  of 
March  last,  and  at  several  times  afterwards,  and  that  upon  a  trial  of 
the  indictment,  in  the  Court  of  Common  Pleas,  he  was  convicted.  Two 
exceptions  were  taken  to  the  directions  and  opinion  of  that  court  in 
matter  of  law,  upon  which  the  case  has  been  brought  before  this  court, 
pursuant  to  the  statute.  These  exceptions  were  as  follows:  1.  That 
the  2d  and  3d  sections  of  the  47th  chapter  of  the  Revised  Statutes, 
upon  which  this  prosecution  is  founded,  are  unconstitutional  and  void. 
2.  Because  the  court  instructed  the  jury  that  these  sections  were  in 
force  as  law,  at  the  time  when  the  acts  charged  as  offences  were  alleged 
to  be  done  ;  whereas  the  defendant  contended  that  they  were  repealed 
by  a  subsequent  act  of  the  legislature.  Upon  the  first  no  argument  has 
been  offered,  and  it  does  not  seem  to  be  ins^isted  on.  The  second  de- 
pends upon  the  question  whether  the  statute  of  1840,  c.  1,  passed  on 
the  11th  of  Februar}-,  1840,  and  which  went  into  operation  in  thirty 
days  from  its  passage,  to  wit,  loth  March,  1840,  simply  repealing  the 
statute  of  1838,  c.  157,  did,  by  its  legal  operation,  revive  the  2d  and 
3d  sections  of  the  47th  chapter  of  the  Re^ased  Statutes.  If  it  did,  the 
case  of  the  defendant  was  within  them,  the  acts  all  being  charged  to 
have  been  done  after  the  13th  of  March  last,  and  the  acts  themselves 
being  made  punishable  by  those  provisions  of  the  Revised  Statutes. 

It  is  conceded  to  be  a  maxim  of  the  common  law,  applicable  to  the 
construction  of  statutes,  that  the  simple  repeal  of  a  repealing  law,  not 
substituting  other  provisions  in  place  of  those  repealed,  revives  the 
pre-existing  law.  As  a  maxim  of  the  common  law,  it  was  in  force  hefe 
when  the  Constitution  of  the  Commonwealth  was  adopted.     Bj-  that 


oif 


^  The  arguments  of  counsel  and  part  of  the  opinion  are  omitted. 


30  COMMONWEALTH   V.    CHURCHILL.  [CHAP.  L 

Constitution  it  was  declared  that  "  all  the  laws,  which  have  heretofore 
been  adopted,  used,  and  approved  in  the  colony,  province,  or  State  of 
Massachusetts  Bay,  and  usually  practised  on  in  the  courts  of  law,  shall 
still  remain  and  be  in  full  force,  until  altered  or  repealed  b}-  the  legis- 
lature ;  such  parts  only  excepted  as  are  repugnant  to  the  rights  and 
liberties  contained  in  this  Constitution."  This  Constitution  has  been 
construed  as  adopting  the  great  body  of  the  common  law,  with  those 
statutes  made  before  the  emigration  of  our  ancestors,  which  were  made 
in  amendment  of  the  common  law,  so  far  as  these  rules  and  principles 
were  applicable  to  our  condition  and  form  of  government.  Common- 
wealth V.  Leach,  1  Mass.  59.  Commonwealth  v.  Knowiton,  2  Mass. 
534. 

But  it  was  contended,  at  the  argument,  that  under  this  provision  no 
principle  or  rule  of  the  common  law  could  be  regarded  as  adopted,  un- 
less it  could  be  shown  affirmatively  that  it  had  been  adjudicated  before 
*  the  Revolution.     But  we  apprehend  this  would  be  much  too  narrow  a 

construction.  Before  the  Revolution,  we  had  no  regular  reports  of 
judicial  decisions ;  and  the  most  familiar  rules  and  principles  of  law  — 
those  which  lie  at  the  foundation  of  our  civil  and  social  rights  —  could 
not  be  so  proved.  No ;  we  rely  on  usage  and  tradition,  and  the  well 
known  repositories  of  legal  learning,  works  of  approved  authorit}',  to 
learn  what  are  the  rules  of  the  common  law  ;  and  we  have  no  doubt 
that  these  were  the  great  sources  to  which  the  above  pregnant  provision 
of  our  Constitution  refers. 

Taking  it,  then,  as  well  established  that  the  rules  and  maxims  of  the 
common  law  referred  to  in  the  Constitution  were  those  which  our  an- 
cestors brought  with  them,  and  which  had  been,  to  some  extent,  modi- 
fied and  adapted  to  our  condition  by  the  legislative  jurisprudence  of  the 
colonial  and  provincial  governments,  it  follows  that  these  rules  and 
principles  were  regarded  as  binding  both  upon  legislators  and  judges 
in  their  respective  departments.  A  part  of  this  sjstem  are  the  well 
known  rules  of  construction  for  the  expounding  of  statutes,  which  are 
as  much  a  part  of  every  statute  as  its  text.  These  are  presumed  to  be 
known  and  kept  in  view  b}'  the  legislature  in  framing  the  statute  ;  and 
they  must  be  alike  resarded  b}'  judges  in  expounding  it. 

It  was  further  insisted  in  the  argument  that  the  legislature  could 
not  have  intended,  when  they  refjealed  one  license  law,  in  effect  to  re- 
establish another.  But  their  intentions  must  be  ascertained  b}^  their 
f)  acts  alone,  and  not  by  evidence  aliunde.     We  cannot  possibly  know 

\n  the  intentions  of  members  of  the  legislature.     It  is  the  will  of  the  aggre- 

1  i  gate  bod}'  as  expressed  in  the  statutes  which  thej-  pass,  which  can  be 

\C\U.  regarded  as  having  the  force  of  law;  any  different  construction  would 
lead  to  the  greatest  confusion  and  uncertainty.  The  legislature  are 
presumed  to  understand  and  intend  all  consequences  of  their  own 
measures  ;  and  the  only  safe  course  is  for  courts  of  justice  to  expound 
the  intentions  of  the  legislature  by  their  acts,  and  those  acts  construed 
by  known  and  established  rules  of  construction. 


CHAP.  I.]     ST.  LOUIS,  IRON   MOUNTAIN  &  SOUTHERN  RY.  V.  TAYLOR.    31 

On  the  whole,  the  Court  are  of  opinion  that  the  simple  repeal  of  St. 
1838,  e.  157,  by  that  of  1840,  c.  1,  did  revive  the  2d  and  3d  sections  of 
the  Rev.  Stats,  c.  47,  and  that  the  provisions  of  those  sections  were  in 
force  at  the  time  of  the  offences  charged  in  the  indictment,  and  that 
the  conviction  was  right. 

Exceptions  overruled. 


ST.   LOUIS,   IRON  MOUNTAIN  &   SOUTHERN   RAILWAY 

V.  TAYLOR. 

Supreme  Court  of  the  United  States,  1908. 
[Re-ported  210  U.  S.  281.] 

Moody,  J.     The  defendant  in  error,  as  administratrix  of  George  W. 
Taylor,  brought,  in  the  Circuit  Court  of  the  State  of  Arkansas,  this 
action  at  law  against  the  plaintiff  in  error,  a  corporation  owning  and/r^"^^^ 
operating  a  railroad.    Damages  were  sought,  for  the  benefit  of  Taylor's 
wadow  and  next  of  kin,  on  account  of  his  injury  and  death  in  the  course 
of  his  employment  as  brakeman  in  the  ser\ace  of  the  railroad.     It^  '^-^  /iX^JUt^cn. 
was  alleged  in  the  complaint  that  Taylor,  while  attempting,  in  the  ^^'JJxjLO  a 
discharge  of  his  duty,  to  couple  two  cars  was  caught  between  them      ;7~    0 
and  killed.    The  right  to  recover  for  the  death  was  based  solely  on  the 
failure  of  the  defendant  to  equip  the  two  cars  which  were  to  be  coupled 
with  such  draw  bars  as  were  required  by  the  act  of  Congress  known 
as  the  Safety  Appliance  Law.     Act  of  March  2,  1893,  c.  196,  27  Stat. 
531.  .  .  . 

In  the  case  before  us  the  liability  of  the  defendant  does  not  grow  out 
of  the  common-law  duty  of  master  to  ser\'ant.  The  Congress,  not  satis- 
fied with  the  common-law  duty  and  its  resulting  liability,  has  pre- 
scribed and  defined  the  duty  by  statute.  We  have  nothing  to  do  but 
to  ascertain  and  declare  the  meaning  of  a  few  simple  words  in  which  ^^* 

the  duty  is  described.  It  is  enacted  that  "no  cars,  either  loaded  or 
unloaded,  shall  be  used  in  interstate  traffic  which  do  not  comply 
with  the  standard."  There  is  no  escape  from  the  meaning  of  these, 
words.  Explanation  cannot  clarify  them,  and  ought  not  to  be  em- 
ployed to  confuse  them  or  lessen  their  significance.  The  ob\nous 
purpose  of  the  legislatiu-e  was  to  supplant  the  qualified  duty  of  the 
common  law  with  an  absolute  duty  deemed  by  it  more  just.  If  the 
railroad  does,  in  point  of  fact,  use  cars  which  do  not  comply  with 
the  standard,  it  \'iolates  the  plain  prohibitions  of  the  law,  and  there 
arises  from  that  N-iolation  the  liability  to  make  compensation  to  one  who 
is  injured  by  it.  It  is  urged  that  this  is  a  harsh  construction.  To  this 
we  reply,  that,  if  it  be  the  true  construction,  its  harshness  is  no  con- 
cern of  the  courts.     They  have  no  responsibility  for  the  justice  or 


32  VANDINE.  [chap.  I. 

wisdom  of  legislation,  and  no  duty  except  to  enforce  the  law  as  it  is 
WTitten,  unless  it  is  clearly  beyond  the  constitutional  power  of  the 
lawmaking  body.  It  is  said  that  the  liability  under  the  statute,  as 
thus  construed,  imposes  so  great  a  hardship  upon  the  railroads  that 
it  ought  not  to  be  supposed  that.  Congress  intended  it.  Certainly^ 
the  statute  ought  not  to  be  given  an  absurd  or  utterly  unreasonable 
interpretation  leading  to  hardship  and  injustice,  if  any  other  inter- 
pretation is  reasonably  possible.  But  this  argument  is  a  dangerous 
one,  and  never  should  be  heeded  where  the  hardship  would  be  occa- 
sional and  exceptional.  It  would  be  betten  it  was  once  said  by  Lord 
Eldon,  to  look  hardship  in  the  face  rather  Than  break  down  the  rules 
of  law.  But  when  applied  to  the  case  at  bar  the  argument  of  hardship 
is  plausible  only  when  the  attention  is  directed  to  the  material  interest 
of  the  employer  to  the  exclusion  of  the  interests  of  the  employe  and 
of  the  public.  Where  an  injury  happens  tlirough  the  absence  of  a 
safe  draw  bar  there  must  be  hardship.  Such  an  injury  must  be  an 
irreparable  misfortune  to  some  one.  If  it  must  be  borne  entirely  by 
him  who  suffers  it,  that  is  a  hardship  to  him.  If  its  burden  is  transferred, 
as  far  as  it  is  capable  of  transfer,  to  the  employer,  it  is  a  hardship  to 
him.  It  is  quite  conceivable  that  Congress,  contemplating  the  inevi- 
table hardship  of  such  injuries,  and  hoping  to  diminish  the  economic 
loss  to  the  community  resulting  from  them,  should  deem  it  wise  to 
impose  their  burdens  upon  those  who  could  measurably  control  their 
causes,  instead  of  upon  those  who  are  in  the  main  helpless  in  that 
regard.  Such  a  policy  would  be  intelligible,  and,  to  say  the  least,  not 
so  unreasonable  as  to  require  us  to  doubt  that  it  was  intended,  and  to 
seek  some  unnatural  interpretation  of  common  words.  We  see  no 
error  in  this  part  of  the  case.  But  for  the  reasons  before  given  the 
judgment  must  be  Reversed. 


VANDINE,    Petitioner. 
Supreme  Judicial  Court  of  Massachusetts.    1828. 

[Reported  6  Pickering,   187.] 

Petition  for  a  writ  of  certiorari  to  the  Municipal  Court  of  the  city  of 
Boston.  Vandine  was  prosecuted  upon  a  by-law  of  Boston,  passed  in 
April  182G,  b}-  which  it  is  ordained,  that  no  person  shall  remove,  cart 
or  carry  through  any  of  the  streets,  squares,  lanes,  or  alleys  of  the  city, 
any  house-dirt,  refuse,  ofl'al,  filth  or  animal  or  vegetable  substance  from 
any  of  the  dwelling-houses  or  other  places  occupied  by  the  inhabitants, 
in  any  cart,  wagon,  truck,  hand-cart  or  other  vehicle,  unless  such  per- 
son so  removing,  etc.  together  with  the  cart.  etc.  shall  be  duh'  licensed 
for  that  employment  and  purpose  by  the  mayor  and  aldermen,  upon 
such  terms  and  conditions  as  they  shall  deem  the  health,  comfort,  con- 


CHAP.  I.]  VANDINE.  33 

venience  or  interest  of  the  eit}-  require,  on  pain  of  forfeiting  a  sum  not 
less  than  three  dollars  nor  more  than  twenty. 

It  was  proved  at  the  trial,  that  Vandine  transported  house-dirt  and 
offal  from  the  3'ards  of  houses  to  his  cart  standing  in  the  streets  of  the 
city. 

Vandine  being  called  on  for  his  defence,  it  was  agreed  that  he  was 
an  inhabitant  of  the  town  of  Cambridge,  and  that  he  owned  and  kept 
there  a  large  number  of  hogs. 

The  judge  instructed  the  jury  that  the  subject  of  the  regulation 
■was  one  on  which  it  was  proper  for  the  cit}'  to  legislate.  .  .  . 
He  further  instructed  the  jury  that,  so  far  as  by  virtue  of  the  general 
laws  of  the  Commonwealth,  the  city  council  had  power  to  make  by-laws 
for  governing  the  cit}^  these  regulations  were  binding  on  all  persons 
actually  resident  within  its  limits,  either  for  business  or  pleasure,  and 
whether  inhabitants  or  strangers.^  .   .  . 

Putnam,  J.,  delivered  the  opinion  of  the  Court.     The  first  objection 
is  that   this   by-law  is  not   binding   upon  strangers,    if  it   should   be    j 
considered  as  binding  upon  the  citizens  of  Boston.  _j 

Some  b)--laws  are  binding  upon  strangers  as  well  as  upon  the  inhab- 
itants or  members  of  the  corporation,  and  some  are  not.  The  distinc- 
tion is  between  corporations  united  as  a  fraternity  for  the  purposes  of 
business,  having  no  local  jurisdiction,  and  corporations  having  a 
territorial  jurisdiction  ;  the  former  have  not,  but  the  latter  have  power 
to  make  by-laws  binding  upon  strangers. 

For  example:  a  by-law  of  the  corporation  of  Trinity  House,  "  that 
everj'  mariner,  within  twenty  four  hours  after  anchorage  in  the  Thames, 
put  his  gunpowder  on  shore,  does  not  bind,  because  the  corporation  has 
no  jurisdiction  upon  the  Thames."     Com.  Dig.  Bye-law,  C  2. 

In  the  case  of  Dodwell  v.  The  University  of  Oxford,  2  Ventr.  33,  the 
Chancellor's  Court  of  the  University  made  a  by-law,  that  whoever, 
privileged  or  not  privileged,  should  be  taken  walking  in  the  streets  at 
9  o'clock  at  night,  having  no  reasonable  excuse,  by  the  proctor,  etc. 
should  forfeit,  etc.  And  it  was  held  that  the  corporation  could  not 
make  a  by-law  binding  upon  au}^  who  were  not  of  their  body.  They 
went  beyond  their  jurisdiction,  which  could  not  be  considered  as 
extending  to  the  inhabitants  of  Oxford  who  were  not  scholars.  Regard 
is  to  be  had  to  the  nature  of  the  incorporation  ;  if  it  is  a  banking  incor- 
poration, for  example,  their  by-laws  must  be  confined  to  the  proper 
mode  of  conducting  their  affairs.  Where  the  corporation  has  a  local 
jurisdiction,  their  by-laws  affect  all  who  come  within  it ;  for  example, 
the  by-law  of  the  city  of  London,  that  no  citizen,  freeman  or  stranger 
should  expose  any  broad-cloth  to  sale  within  the  city  before  it  should  l 
be  brought  to  Blackwell  Hall  to  be  examined  whether  it  were  saleable  \ 
or  not,  was  held  binding  upon  strangers  as  well  as  citizens.  5  Co.  63.  1 
So  in  Pierce  v.  Bartrum,  Cowp.  269,  a  by-law  of  the  mayor  and^-^ 

^  Part  of  the  instructions  and  the  arguments  of  counsel  have  been  omitted.  —  Etx 


.-t^ 


J 


34  VANDINE.  [chap.  I. 

common  council  of  the  citj^  of  Exeter,  that  no  person  should  slaughter 
beasts  or  keep  swine  within  the  walls  of  the  city,  was  held  good  against 
the  defendant,  who  was  not  free  of  the  cit}-,  but  onl}-  residing  there. 
He  was  considered  as  an  inhabitant  pro  hac  vice.  So  where  the  cor- 
poration have  jurisdiction  over  all  of  the  same  trade  or  profession 
within  certain  limits,  as  the  College  of  Physicians  have  for  seven  miles 
round  London  ;  whose  b3--laws  regulating  the  practice  of  physic  are 
binding  upon  all  within  those  limits. 

The  by-laws  which  ai'e  made  by  corporations  having  a  local  jurisdic- 
tion, are  to  be  observed  and  obeyed  by  all  who  come  within  it,  in  the 
same  manner  as  aliens  and  strangers  within  the  commonwealth  are 
bound  to  know  and  obey  the  laws  of  the  land,  notwithstanding  they 
may  not  know  the  language  in  which  they  are  written.  They  receive 
the  benefits  arising  from  the  municii)al  arrangements,  and  are  presumed 
to  assent  to  them,  upon  the  same  principle  which  requires  from  them  a 
temporary  allegiance  to  the  state  for  the  protection  it  affords  to  them 
during  their  residence. 

But  it  is  contended  that  this  bj'-law  is  void  as  it  is  in  restraint  of 
trade,  and  operates  as  a  monopoly.     Every  regulation  of  trade  is  in 
(A-<^^  some  sense  a  restraint  upon  it;  it  is  some  clog  or  impediment,  but  it 

does  not  therefore  follow  that  it  is  to  be  vacated.  If  the  regulation  is 
unreasonable,  it  is  void  ;  if  necessar}'  for  the  good  government  of  the 
societ}',  it  is  good. 

The  case  cited  b}'  the  counsel  for  the  defendant  from  1  Rol.  Abr. 
364,  was  of  the  former  character.  The  mayor  and  commonalty  of 
London  made  a  by-law,  that  no  carman  within  the  city  should  go  with 
his  cart,  without  license  from  the  wardens  of  such  an  hospital,  under  a 
certain  penalty  for  each  offence  ;  and  it  was  held  to  be  a  void  by-law, 
because  it  was  in  restraint  of  the  lil)erty  of  the  trade  of  a  carman,  and 
it  was  held  to  be  unreasonable,  because  it  went  to  the  private  benefit  of 
the  wardens  of  the  hospital,  and  was  in  the  nature  of  a  monopoly. 
Now  we  think  that  case  was  rightly  decided  ;  it  was  an  act  of  oppression. 
We  perceive  no  reason  wh}'  the  wardens  of  the  hospital  should  have  a 
superintendance  and  control  of  all  the  business  of  the  carmen,  thus 
laying  them  under  a  contribution  at  the  will  of  the  wardens. 

To  arrive  at  a  correct  decision  whether  the  bN'-law  be  reasonable  or 
not,  regard  must  be  had  to  its  object  and  necessit}'.  Minute  regula- 
tions are  required  in  a  great  city,  which  would  be  absurd  in  the  country. 
The  cases  upon  this  subject  are  well  collected  by  Baron  Comyns  in  his 
Digest,  title  "  Bye-law."  It  has  been  found  to  be  reasonable  in  the  city 
of  London,  to  provide  that  brewers'  drays  should  not  be  in  the  streets 
there  after  eleven  o'clock  in  the  morning  in  summer,  and  one  in  winter; 
that  no  person  should  unlade  coals  out  of  a  barge,  if  he  be  not  of  the 
porters  company;  thus  in  some  manner  restraining  trade. 

There  have  been  regulations  also  adopted  in  that  city,  that  none 
shall  be  brokers  unless  licensed  and  sworn  ;  that  none  shall  be  hawkers 
■without  license  ;  thus  in  some  measure  restraining  the  natural  rights 


if: 


CHAP.  I.]  -  UNITED    STATES   V.    WILTBERGER.  35 

of  the  subjects.  Now  it  is  contended  that  the  by-law  under  considera- 
tion is  in  restraint,  and  not  a  mere  regulation  of  the  trade  in  which  the 
defendant  is  engaged  ;  that  he  provides  as  good  and  tight  carts  as  the 
men  do  who  are  authorized  by  the  city,  in  the  performance  of  this 
labor.  We  do  not  perceive  that  there  is  an}'  more  reason  to  complain 
of  the  law  requiring  a  license  to  do  this  work,  than  of  the  law  prohibit- 
ing the  keeping  of  livery  stables  in  an}'  place  not  licensed.  One  might 
just  as  well  complain  of  the  regulation  which  prevents  him  from  being 
an  auctioneer  without  license  ;  and  so  of  various  other  trades  and  con- 
cerns which  it  is  found  necessary  to  subject  to  such  restriction. 

The  great  object  of  the  city  is  to  preserve  the  health  of  the  inhabi- 
tants. To  attain  that,  they  wisely  iisregard  any  expense  which  is 
deemed  to  be  requisite.  They  might  probably  have  these  offensive 
substances  carried  out  of  the  city  without  any  expense,  if  they  would 
permit  the  people  from  the  country  to  take  them  away  at  such  times 
and  in  such  manner  as  would  best  accommodate  them.  Every  one  will 
see  that  if  this  business  were  thus  managed,  there  would  be  continual 
moving  nuisances  at  all  times,  and  in  all  the  streets  of  the  city,  break- 
ing up  the  streets  by  their  weight  and  poisoning  the  air  with  their 
effluvia.  It  is  obvious,  that  the  object  and  interest  of  the  city,  and 
those  of  the  carmen,  in  this  concern,  are  extremely  different.  But  it  is 
contended  that  the  city  authorities  may  regulate  strangers  and  un- 
licensed persons,  in  regard  to  the  number  of  horses  and  kind  of  carts 
to  be  employed,  just  as  well  as  they  can  carts  and  the  conduct  of  the 
licensed  persons.  It  seems  to  us,  however,  that  the  city  authority  has 
judged  well  in  this  matter.  They  prefer  to  employ  men  over  whom 
they  have  an  entire  control  by  night  and  by  day,  whose  services  may 
be  always  had.  and  who  will  be  able  from  habit  to  do  this  work  in  the 
best  possible  way  and  time.  Practically  we  think  the  main  object  of 
the  city  government  will  be  better  accomplished  by  the  arrangement 
they  have  adopted,  than  by  relying  upon  the  labor  of  others,  against 
whom  the  government  would  have  no  other  remedy  than  by  a  suit  for  a 
breach  of  contract.  The  sources  of  contagion  and  disease  will  be 
speedily  removed  in  small  loads,  which  will  not  injure  the  pavementSj 
nor  annoy  the  inhabitants.  We  are  all  satisfied  that  the  law  is  reason- 
able, and  not  only  within  the  power  of  the  government  to  prescribe, 
but  well  adapted  to  preserve  the  health  of  the  city. 

The  direction  and  opinion  of  the  judge  of  the  Municipal  Court  was 
entirely  correct. 

UNITED   STATES   v.  WILTBERGER 
Supreme  Court  of  the  United  States.     1820. 

[Reported  5  Wheato?2,  70.] 

This  was  an  indictment  for  manslaughter,  in  the  Circuit  Court  of 
Pennsylvania.     The  jury  found  the  defendant  guilty  of  the  offence  with 


36  UNITED   STATES    V.    WILTBEKGER.  [CHAP.  I. 

which  he  stood  indicted,  subject  to  the  opinion  of  the  court,  whether 
this  court  has  jurisdiction  of  the  (ase,  which  was  as  follows  : 

The  manslaughter  charged  in  the  indictment  was  committed  b}-  the 
defendant  on  board  of  the  American  ship  The  Betijmnin  Rush,  on  a  sea- 
man belonging  to  the  said  ship,  whereof  the  defendant  was  master,  in 
the  river  Tigris,  in  the  empire  of  China,  off  Wampoa,  and  ai)out  100 
yards  from  the  shore,  in  four  and  a  half  fathoms  water,  and  below  the 
low  water  mark,  thirt^'-five  miles  above  the  mouth  of  the  river.  The 
water  at  the  said  place  where  the  offence  was  committed  is  fresh, 
except  in  very  dr}'  seasons,  and  the  tide  ebbs  and  flows  at  and  above 
the  said  place.  At  the  mouth  of  the  Tigris  the  government  of  China 
has  forts  on  each  side  of  the  river,  where  custom-house  officers  are 
taken  in  b\'  foreign  vessels  to  prevent  smuggling.  The  river  at  the 
mouth  and  at  Wampoa  is  about  Jjal£_a  mile  in  breadth. 

And  thereupon,  the  opinions  of  the  Judges  of  the  Circuit  Court 
being  opposed  as  to  the  jurisdiction  of  the  court,  the  question  was  by 
them  stated,  and  directed  to  be  certified  to  this  court. ^ 

Marshall,  C.  J.  The  indictment  in  this  case  is  founded  on  the  12th 
section  of  the  act,  entitled,  "  An  act  for  the  punishment  of  certain  crimes 
against  the  United  States."  That  section  is  in  these  words:  "  And  be 
it  enacted,  that  if  any  seaman,  or  other  person,  shall  commit  man- 
slaughter on  the  high  seas,  or  confederate,"  etc.,  "such  person  or 
persons  so  offending,  and  being  thereof  convicted,  shall  be  imprisoned 
not  exceeding  three  years,  and  fined  not  exceeding  one  thousand 
dollars." 
'  The  jurisdiction  of  the  court  depends  on  the  place  in  which  the  fact 

was  committed.  Manslaughter  is  not  punishable  in  the  courts  of  the 
United  States,  according  to  the  words  which  have  been  cited,  unless  it 
be  committed  on  the  high  seas.  Is  the  place  described  in  the  special 
verdict  a  part  of  the  high  seas  ? 

If  the  words  be  taken  according  to  the  common  understanding  of 
mankind,  if  the}'  be  taken  in  their  popular  and  received  sense,  the 
"•  high  seas,"  if  not  in  all  instances  confined  to  the  ocean  which  washes 
a  coast,  can  never  extend  to  a  river  about  half  a  mile  wide,  and  in  the 
interior  of  a  country.  This  extended  construction  of  the  words,  it  has 
been  insisted,  is  still  farther  opposed  by  a  comparison  of  the  12th  with 
the  8th  section  of  the  act.  In  the  8th  section,  Congress  has  shown 
its  attention  to  the  distinction  between  the  "  high  seas,"  and  "a  river, 
Si-c  ,  haven,  basin,  or  bay."    The  well-known  rule  that  this  is  a  penal  statute, 

and  is  to  be  construed  strictly,  is  also  urged  upon  us. 

On  the  part  of  the  United  States,  the  jurisdiction  of  the  court  is  sus- 
tained, not  so  much  on  the  extension  of  the  words  "  high  seas,"  as  on 
that  construction  of  the  whole  act,  which  would  engraft  the  words  of  the 
8lh  section,  descriptive  of  the  place  in  which  murder  may  be  committed, 
on  the  12th  section,  which  describes  the  place  in  which  manslaughter 
may  be  committed.     This  transfer  of  the  words  of  one  section  to  the 

*  Arguments  of  counsel  and  part  of  the  opiniou  are  omitted.  —  Er>. 


CHAP.  L]         united  states  V.    WILTBERGEE.  37 

Other,  is,  it  has  been  contended,  in  pursuance  of  the  obvious  intent  of 
the  legislature;  and  in  support  of  the  authorit}-  of  the  court  so  to  do, 
certain  maxims  or  rules  for  the  construction  of  statutes  have  been 
quoted  and  relied  on.  It  has  been  said,  that  although  penal  laws  are 
to  be  construed  strictly,  the  intention  of  the  legislature  must  govern  in 
their  construction.  That  if  a  case  be  within  the  intention,  it  must  be 
considered  as  if  within  the  letter  of  the  statute.  So  if  it  be  within  the 
reason  of  the  statute. 

The  rule  that  penal  laws  are  to  be  construed  strictl}',  is  perhaps  not 
much  less  old  than  construction  itself.  It  is  founded  on  the  tenderness 
of  the  law  for  the  rights  of  individuals  ;  and  on  the  plain  principle  that 
the  power  of  punishment  is  vested  in  the  legislative,  not  in  the  judicial 
department.  It  is  the  legislature,  not  the  court,  which  is  to  define  a 
crime,  and  ordain  its  punishment. 

It  is  said,  that  notwithstanding  this  vule,  the  intention  of  the  law- 
maker must  govern  in  the  construction  of  penal,  as  well  as  other 
statutes.  This  is  true.  But  this  is  not  a  new  independent  rule  which 
subverts  the  old.  It  is  a  modification  of  the  ancient  maxim,  and 
amounts  to  this,  that  tliough  penal  laws  are  to  be  construed  strictly, 
they  are  not  to  be  construed  so  strictlj'  as  to  defeat  the  obvious  inten- 
tion of  the  legislature.  The  maxim  is  not  to  be  so  applied  as  to  narrow 
the  wprds  of  the  statute  to  the  exclusion  of  cases  which  those  words, 
in  their  ordinary  acceptation,  or  in  that  sense  in  which  the  legislature 
has  obviousl}'  used  them,  would  comprehend.  The  intention  of  the  legis- 
lature is  to  be  collected  from  the  words  the}'  employ.  Where  there  is 
no  ambiguity  in  the  words,  there  is  no  room  for  construction.  The 
case  must  be  a  strong  one  indeed  which  would  justify  a  court  in  depart- 
ing from  the  plain  meaning  of  words,  especially  in  a  penal  act,  in  search 
of  an  intention  which  the  words  themselves  did  not  suggest.  To  deter- 
mine that  a  case  is  within  the  intention  of  a  statute,  its  language  must 
authorize  us  to  say  so.  It  would  be  dangerous  indeed  to  curry  the 
principle,  that  a  case  which  is  within  the  reason  or  mischief  of  a  stat- 
ute, is  within  its  provisions,  so  far  as  to  punish  a  crime  not  enumerated 
in  the  statute,  because  it  is  of  equal  atrocity  or  of  kindred  character 
with  those  which  are  enumerated.  If  this  principle  has  ever  been 
recognized  in  expounding  criminal  law,  it  has  been  in  cases  of  con- 
siderable irritation,  which  it  would  be  unsafe  to  consider  as  precedents 
forming  a  general  rule  for  other  cases. 

After  giving  the  subject  an  attentive  consideration,  we  are  unani- 
mously of  opinion  that  the  offence  charged  in  this  indictment  is  not 
cognizable  in  the  courts  of  the  United  States  ;  which  opinion  is  to  be 
certified  to  the  Circuit  Court  for  the  district  of  Pennsylvania. 


7 


38  ANONYMOUS.  [CHAP.  II. 


CHAPTER   II. 
LIABILITY   BASED   UPON   ACT. 


SECTION   I. 

Nature  of  an  Act. 

ANONYMOUS. 
King's  Bench,  1370. 

[Reported  Lib.  Asds.     287,  pi.  17.] 

William  H.  was  arraigned  in  the  King's  Bench  for  that  he  had 
killed  one  J.  De  B.  feloniously;  and  he  pleaded  not  guilty.  The  jury 
came  and  said  that  the  dead  man  struck  W.  from  behind  in  the  neck 
with  his  fist,  so  that  W.  fell  to  the  ground;  and  while  W.  was  on  the 
ground  the  dead  man  drew  his  knife  to  have  killed  W.,  and  W.,  lying 
on  the  ground,  drew  his  own  knife,  and  the  dead  man  was  so  hasty 
to  have  killed  W.  that  he  fell  on  W.'s  knife  and  so  killed  himself. 

Knivet,  C.  J.  If  W.  had  killed  the  dead  man  in  self-defence  W.'s 
chattels  would  have  been  forfeited,  and  W.  would  have  sued  the  king 
to  have  a  charter  of  pardon ;  but  now  it  is  found  that  the  dead  man  killed 
himself,  in  a  way,  wherefore  we  ^\nll  advise  whether  W.  shall  be  put  to 
sue  the  king  for  his  charter  and  forfeit  his  goods,  or  not. 

And  then  he  was  adjudged  not  guilty  and  his  chattels  not  forfeited.^ 

1  "  An  act  is  the  result  of  an  exercise  of  the  will."  Gray,  J.,  in  Duncan  v.  Landis, 
106  Fed.  839,  848. 

"Acts  are  exertions  of  the  \d\\  manifested  in  the  external  world."  Professor 
Pound,  Readings  on  the  History  and  System  of  the  Common  Law,  453. 

"If  a  movement  is  caused  by  physical  compulsion,  'vis  ahsoluta,'  as  when  the 
hand  of  a  person  is  forcibly  guided  in  making  a  signature,  there  is  no  act,  since  will 
is  absent.  But  the  will  itself,  being  amenable  to  motives,  may  be  coerced  by  threats, 
'metus,'  'vis  mmpulsiva,'  'duress  per  mina-s.'  Here  there  is  indeed  an  act,  but  one 
which  produces  none  or  few  of  the  legal  consequences  which  it  would  have  produced 
had  it  been  the  result  of  free  vohtion."    Holland,  Jurisprudence,  103. 


SECT.  I.]  GIBBONS   V.    PEPPER.  39 


GIBBONS  V.  PEPPER. 
King's  Bench,  1695. 

[Reported  1  Ld.  Raym.  38.] 

Trespass,  assault  and  battery.  The  defendant  pleads,  that  he  rode 
upon  a  horse  in  the  king's  highway,  and  that  his  horse  being  affrighted 
ran  away  with  him,  so  that  he  could  not  stop  the  horse;  that  there 
were  several  persons  standing  in  the  way,  among  whom  the  plaintiff 
stood;  and  that  he  called  to  them  to  take  care,  but  that  notwithstand- 
ing, the  plaintiff  did  not  go  out  of  the  way,  but  continued  there; 
so  that  the  defendant's  horse  ran  over  the  plaintiff  against  the  will 
of  the  defendant;  quae  est  eadem  transgressio,  &c.  The  plaintiff  de- 
murred. And  Serjeant  Damail  for  the  defendant  argued,  that  if  the 
defendant  in  his  justification  shews  that  the  accident  was  ine%'itable, 
and  that  the  negligence  of  the  defendant  did  not  cause  it,  judgment 
shall  be  given  for  him.  To  prove  which  he  cited  Hob.  344.  Weaver 
V.  Ward.     Mo.  864.  pi.  1192.    2  Roll.  Abr.  548.     1  Brownl.  prec.  188.  ^  ^ 

Northey  for  the  plaintiff  said,  that  in  all  these  cases  the  defendant 
confessed  a  battery,  which  he  afterwards  justified;  but  in  this  case 
he  justTfied  a  battery,  which  is  no  battery.  Of  which  opinion  was  the 
whole  court;  for  if  I  ride  upon  a  horse,  and  J.  S.  whips  the  horse,  so 
that  he  runs  away  with  me,  and  runs  over  any  other  person,  he  who 
whipped  the  horse  is  guilty  of  the  battery,  and  not  me.  But  if  I  by 
spurring  was  the  cause  of  such  accident,  then  I  am  guilty.  In  the 
same  manner,  if  A.  takes  the  hand  of  B.  and  with  it  strikes  C»,  A.  is 
the  trespasser,  and  not  B.  And,  per  curiam,  the  defendant  might  have 
given  this  justification  in  e\'idence,  upon  the  general  issue  pleaded. 
And  therefore  judgment  was  given  for  the  plaintiff. 


fV  J,  J 


40  EEX    V.   SUTTON.  [CHAP.   II. 


»r 


REX  V.    SUTTON. 

King's  Bench.     1736. 

^Reported  Cases  temp.  Haidwicke,  370.3  ^ 

The  defendant  was  indicted,  for  that  being  a  person  of  evil  fame 
and  reputation,  on  the  25th  day  of,  &c.,  without  any  lawful  authority, 
[he]  had  in  his  custody  and  possession  two  iron  stamps,  each  of  which 
would  raalie  or  impress  the  figure,  resemblance,  and  similitude  of  one 
of  the  sceptres  made  and  imprest  upon  the  current  gold  coin  of  this 
kingdom,  called  half-guineas,  with  an  intent  to  make  the  impression  of 
sceptres  on  divers  pieces  of  silver  coin  of  this  realm,  called  sixpences, 
and  to  color  such  pieces  of  the  color  of  gold,  and  fraudulently  to 
ntter  them  to  his  Majesty's  subjects,  for  and  as  pieces  of  lawful  and 
current  gold  coin  of  this  realm,  called  half-guineas,  against  the  peace 
of  our  Lord  the  King,  his  crown  and  dignity.  And  the  indictment 
further  sets  forth,  that  the  defendant,  the  day  and  year  aforesaid,  in 
the  said  county  of  Northampton,  unlawfully  had  in  his  custody  and 
possession  one  piece  of  silver,  colored  over  with  certain  metal  pro- 
ducing the  color  of  gold,  and  feloniously  made  to  resemble  a  piece  of 
the  current  coin  of  this  realm,  commonly  called  a  half-guinea,  with 
intent  to  utter  the  said  piece  so  colored  and  feloniously  made  to  re- 
semble a  half-guinea  to  some  of  his  Majesty's  subjects  for  and  as  a 
piece  of  lawful  and  current  gold  coin  of  this  realm,  called  a  half- 
guinea  (he,  the  said  defendant,  then  and  there  well  knowing  the  said 
piece  to  be  silver  coin  colored  and  falsely  made),  to  the  evil  example 
of  all  others,  and  against  the  peace  of  our  Lord  the  King,  his  crown 
and  dignity. 

The  defendant  was  tried  upon  this  indictment  at  the  last  summer 
assizes,  and  found  guilty,  before  my  Lord  Hardwicke,  C.  J. ;  and  he 
having  some  doubt  what  the  offence  was,  the  defendant  was  brought 
up  last  Michaelmas  term  by  hahena  corpus,  and  committed  to  Newgate, 
and  the  indictment  removed  into  the  King's  Bench  by  certiorari,  for 
the  opinion  of  the  court.     And  Lord  Hardwicke,  C.  J.,  then  said  : 

As  to  the  first  part  of  the  indictment,  I  doubted  whether  it  was  hot 
high  treason  within  the  Stat.  8  &  9  Will.  III.  c.  26,  s.  6 ;  but  it  is 
.  not  at  all  clear  it  would  be  so,  because  this  is  only  to  stamp  part  of 
one  side  of  the  coin,  viz.,  putting  sceptres.  Then  it  is  a  misdemeanor 
at  common  law,  and  it  did  not  occur  to  me  that  having  in  one's  cus- 
tody with  an  intent,  without  any  act  done,  was  a  misdemeanor.     As  to 

1  s.  c.  2  Stra.  1074. 


SECT.  I.]  KEX  V.    SUTTON.  41 

the  second  part,  I  doubted  whether  any  precedent  could  be  found  to 
show  that  the  bare  having  counterfeit  money  in  one's  possession,  with        '^ 
intention  to  utter  it,  without  uttering  it,  was  an  offence.^ 

For  the  defendant  it  was  argued,  that  the  common  law  takes  no  ■'.{j" 

notice  of  a  bare  intention,  as  a  crime,  unless  coupled  with  some  overt 
act ;  and  therefore,  though  in  the  time  of  FAw.  111.  an  intention  to  rob 
was  a  felony,  yet  even  then,  as  appears  by  3  Inst.  fo.  5,  there  must 
have  been  some  overt  act  to  show  that  intention.  So  in  Bacon's  Case, 
1  Sid.  230,  and  1  Lev.  146,  though  an  intention  to  kill  the  Master  of 
the  Rolls  was  adjudged  a  misdemeanor,  yet  there  was  an  overt  act, 
viz.,  a  reward  offered  by  the  defendant  for  doing  it:  so  in  Holmes's 
Case,  Cro.  Car.  376,  where  burning  his  house  with  an  intention  to  burn 
his  neighbor's  was  held  a  misdemeanor  ;  yet  there  was  an  act  joined 
to  the  evil  intention,  viz.,  the  burning  his  own  house.  So  in  the  case 
of  The  King  v.  Cooper,  5  Mod.  206,  and  Skinner,  637,  where  an  inten- 
tion to  assist  the  king's  enemies  was  held  a  misdemeanor  ;  yet  there 
was  an  overt  act  laid,  viz.,  hiring  a  boat  for  that  purpose.  But  this 
indictment  is  really  nothing  more  than  for  an  intention  to  make  an 
impression  with  such  stamps  as  he  had  in  his  custody  ;  and  a  man  may 
be  possessed  of  a  thing  without  having  done  anything  to  acquire  the 
possession  ;  and  the  bare  having  a  thing  is  not  unlawful,  unless  made 
use  of,  or  unless  such  bare  possession  is  made  a  crime  by  a  positive 
law,  as  in  the  case  of  the  Statute  of.  Will.  111.  [c.  26]. 

Per  Cur.  viz.,  Page,  Probtn,  and  Lee,  JJ.  Judgment  must  be  given 
against  the  defendant. 

liEE,  J.     It  is  certain  that  a  bare  intention  is  not  punishable  ;  and 
yet  when  joined  with  acts  whose  circumstances  may  be  tried,  it  is  so  ; 
so  an  action  innocent  in  itself  may  be  made  punishable  by  an  Inten- 
tion joined  to  it ;   as  loading  wool  with  intention  to  transport  it,  as    IJ-^A      '"""^^'^ 
Lord  Hale  says  in  his  Hist.  Plac.  Corou.  vol.  i.  p.  229.     In  this  case  the     '  -jU*  at^ 
indictment  is  for  unlawfully  having  in  his  custody  stamps  capable  of         ■ 
inaking  impression  of  sceptres,  with  intent  to  make  such  impression  : 
now  the  Statute  of  8  &  9  Will.  111.  [c.  26j  has  considered  the  having 
as  an  act ;  for,  by  tlie  statute,  it  is  high  treason  to  have  [knowingly 
any]  instrument,  &c.,  in  his  possession  ;  and  though  the  word  "  know- 
ingly "  is  added,  yet  that  is  an  act  of  the  mind  only  ;  and  the  only  act 
capable  of  trial  in  the  offence  against  the  statute  is  the  having  in  pos- 
session.    All  that  is  necessary  in  this  case  is  an  act  charged,  and  a 
criminal  intention  joined  to  the  act. 

The  court  gave  judgment  that  the  defendant  do  stand  in  the  pillory 
at  Charing-cross  ;  and  in  consideration  of  his  poverty  and  long  impris- 
onment hitherto,  that  he  do  pay  a  fine  of  6s.  8d.  and  be  imprisoned  for 
six  months. 

1  The  argument  for  the  prosecution  is  omitted. 


I^b 


42 


REX    V.    HEATH. 


[chap.  II. 


REX  V.  HEATH. 

Crown  Case  Reserved.     1810. 

[Reported  Russ.  ^-  Ry.  184.] 

This  case  stood  for  trial  before  Mr.  Justice  Batley,  at  the  Lent 
assizes  for  the  county  of  Warwick,  in  the  year  1810  ;  but  as  the  learned 
Judge  thought  it  questionable  whether  the  facts  constituted  any  offence, 
and  as  the  defendant  was  out  upon  bail,  he  postponed  the  trial  by  con- 
sent, that  the  opinion  of  the  judges  might  in  the  meantime  be  taken 
upon  the  case. 

The  indictment  contained  three  counts  :  one  for  uttering  counterfeit 
money I'^a  second  for  having  it  in  his  possession,  knowing  it  to  be  coun- 
terfeit, with  intent  to  circulate  and  put  off  the  same  among  the  liege 
subjects  of  our  Lord  tlie  King,  and  to  defraud  them,  and  a  third  for 
having  tt  in  his  possession  knowingly,  designedly,  and  illegally,  know- 
ing it  to  be  counterfeit. 

The  only  act  of  uttering  was  delivering  a  box  packed  up,  containing 
2800  bad  shillings,  and  1000  bad  sixpences  at  a  coach  office  at  an  inn 
at  Birmingham  addressed  to  a  man  at  Glasgow,  and  the  uttering  was 
stated  to  be  to  the  book-keeper  at  the  inn. 

The  box  was  stopped  at  the  inn. 

The  following  authorities  were  referred  to  in  support  of  the  second 
and  third  counts.  Rex  r.  Sutton,  Ca.  temp.  Hardw.  370 ;  Rex  v.  Sco- 
field,  Cald.  397,  and  Rex  v.  Higgins,  2  East.  5. 

In  Easter  term,  31st  May,  1810,  this  case  was  taken  into  considera- 
tion, all  the  judges  being  present.  They  relied  much  upon  the  authority 
of  Rex  V.  Sutton,  and  the  cases  there  cited,  in  forming  their  opinion, 
and  were  then  inclined  to  think  this  a  misdemeanor  as  stated  in  the 
second  count.  But  on  considering  this  case  again  on  the  first  day 
of  Trinity  term  ensuing,  the  majority  of  the  judges  seemed  to  be  of 
opinion  that  "  having  in  his  possession"  with  the  terms  knowingly,  &c. 
annexed  to  it,  could  not  be  considered  an  act,  and  that  an  intent  without 
an  act  was  not  a  misdemeanor,  and  they  considered  the  case  of  Rex  v. 
Sutton  as  untenable.^ 


1  The  result  seems  to  be  that  the  second  and  third  counts  of  the  indictment  as  here 
framed  are  not  good,  and  any  judgment  upon  them  might  be  arrested. 

But  the  facts  seemed  to  afford  grounds  for  a  good  indictment,  by  stating  that  the 
defendant  acquired  or  procured  the  bad  money  with  intent  to  circulate  it,  or  packing 
it  up  or  delivering  to  the  book-keeper  with  intent  to  circulate  it.     ms.  jtro. 

See  the  same  point  decided  as  in  the  above  case  in  Rex  v.  Stewart,  Mich.  T.  1814, 
post.     See  alflo  Rex  v.  CoUicott,  Hilary  T.  1812,  post.—  Rbp. 


SECT.  I.j  DUGDALE   V.  BEGINA.  43 


DUGDALE  V.  REGINA. 
Queen's  Bench.    1853. 

[Reported  1  Ellis  4-  Blackburn,  435.] 

The  defendant  was  indicted  at  the  Middlesex  sessions.  The  indict- 
ment contained  seven  counts.''  The  defendant  having  been  found  guilty, 
judgment  was  passed  upon  him,  separately  upon  each  count,  whereupon 
he  brought  error  in  this  court.     Joinder  in  error. 

W.  J.  Metcalfe,  for  the  plaintiff  in  error.     The  question  on  the  first      |"  "^ 
and  corresponding  counts  is,  whether  the  procuring  obscene  prints  with 
intent  to  publish  them  be  a  misdemeanor  at  common  law.     The  counts 
charge  no  attempt  to  publish.    On  the  second  and  corresponding  counts      ~  \ 
the  question  is,  whether  the  possessing  with  intent  to  publish  be  a  mis-        ^ 
demeanor,  no  act  at  all  being  charged.* 

Cla7'kso9i,  contra,  was  stopped  by  the  court. 

Lord  Campbell,  C.  J.  We  have  decisions  on  both  sets  of  counts. 
Rex  V.  Heath,  Russ.  &  R.  184,  shows  that  those  counts  cannot  be  sup- 
ported which  merely  charge  a  possession  with  intent  to  publish  ;  the 
mere  intent  cannot  constitute  a  misdemeanor  when  unaccompanied 
with  any  act.  The  case  is  precisely  in  point.  But,  as  to  the  counts 
which  charge  a  procuring  with  intent  to  publish,  we  find  that  in  Rex  v.  _       '_^. 

Fuller,  Russ.  &  R.  308,  in  Easter  term,  1816,  all  the  judges  were  of  '-^ 

opinion  that  the  procuring  counterfeit  coin  with  intent  to   utter  was    ■  .  , 

a  misdemeanor,  and  that  this  might  be  evidenced  by  the  possession. 
Must  not  the  law  be  the  same  as  to  the  publication  of  indecent  prints?  ■  /      U 

The  circulation  of  counterfeit  coin  is  a  statutory  offence  ;  the  circulation  f 

of  indecent  prints  is  punished  at  common  law  for  the  protection  of 
morals.  The  procuring  of  such  prints  is  an  act  done  in  the  commence- 
ment of  a  misdemeanor,  the  misdemeanor  being  the  wicked  offence  of 
publishing  obscene  prints. 

Coleridge,  J.  I  am  of  the  same  opinion.  The  law  will  not  take 
notice  of  an  intent  without  an  act.  Possession  is  no  such  act.  But 
procuring,  with  the  intent  to  commit  the  misdemeanor,  is  the  first  step 
towards  the  committing  of  the  misdemeanor. 

WiGHTMAN,  J.  I  concur  on  both  points.  Mr.  Metcalfe  has  clearly 
shown  that  the  possession  is  not  indictable,  as  not  being  an  act ;  but 
the  procuring  is  an  act. 

Crompton,  J.     Rex  v.  Fuller,  Russ.  &  R.  308,  is  a  distinct  authority. 
Judgme7it  on  the  first  and  corresponding  counts  affirmed. 

1  The  iDdictment  is  omitted. 
'  The  argument  is  omitted. 


44  REX    V.    SQUIRE.  [CHAP.   II. 


SECTION   II. 
Omission  as  an  Act. 

MEMORANDUM. 

Common  Bench.    1368. 

[Rejwrted  Y.  B.  43  Edw.  3,  33,  pi.  38.] 

Thorpe,  J.,  said  that  he  had  seen  that  one  M.  was  indicted  for  that 
he  had  undertaken  a  man  for  a  malady  and  that  h^  killed  the  man  by 
default  of  care. 


<h€\ 


REX  V.  SQUIRE. 
Stafford  Assizes.     1799. 
[Reported  1  Runs.  Cr.  <f  .1/.  24.] 

Charles  Squire  and  his  wife  were  indicted  for  the  murder  of  a  boy 
who  was  bound  as  a  parish  apprentice  to  the  prisoner  Charles;  and  it 
appeared  in  evidence  tliat  both  the  prisoners  had  used  the  apprentice 
in  a  most  cruel  and  barbarous  manner,  and  that  the  wife  had  occasion- 
ally committed  the  cruelties  in  the  absence  of  the  husband.  But  the 
surgeon  who  opened  the  bod}'  deposed  that  in  his  judgment  the  boy 
died  from  debility  and  want  of  proper  food  and  nourishment,  and  not 
from  the  wounds,  etc.,  which  he  had  received.     Upon  which 

Lawrence,  J.,  directed  the  jury  that  as  the  wife  was  the  servant  of 
the  husband  it  was  not  her  duty  to  provide  the  apprentice  with  suffi- 
cient food  and  nourishment,  and  that  she  was  not  guiltv  of  any  breach 
of  duty  in  neglecting  to  do  so  ;  though,  if  the  husband  had  allowed  her 
sufficient  food  for  the  apprentice  and  she  had  wilfully  withholden  it  from 
him,  then  she  would  have  been  guilty.  But  that  here  the  fact  was 
otherwise  ;  and  therefore,  though  in  foro  conscienticB  the  wife  was 
equally  guilty  with  her  husband,  yet  in  point  of  law  she  could  not  be 
said  to  be  guilt}-  of  not  providing  the  apprentice  with  sufficient  food 
and  nourishment. 


SECT.  II.]  REX   V.   FRIEND.  45 


REX   V.    FRIEND. 
Crown  Case  Reserved.     1802. 

[Reported  Russell  ^-  Ryan,  20.] 

The  prisoners  were  tried  before  Mr.  Justice  Le  Blanc  at  the  Exeter 
summer  assizes  in  the  year  1801,  on  an  indictment  for  a  misdemeanor, 
which  charged  that  they  did  take  and  receive  one  Sarah  Quill  into  the 
dwelling-house  of  the  prisoner,  John  Friend,  as  an  apprentice  of  the 
said  John  Friend,  to  be  by  him  treated,  maintained,  and  supported  as 
an  apprentice  of  him  the  said  John  Friend,  and  did,  for  a  long  time, 
have  and  keep  her  in  the  said  house  as  such  apprentice  as  aforesaid  ; 
and  that  during  the  said  time  they  so  had  and  kept  her  in  the  said 
house  as  such  apprentice,  the  said  prisoners,  and  each  of  them,  did, 
with  force  and  arms,  unlawfully  and  injuriously,  and  without  the  con- 
sent of  the  said  Sarah  Quill,  and  against  her  will,  neglect  and  refuse  --iX 
to  find  and  provide  for  and  to  give  and  administer  to  her,  being  so 
had  and  kept  as  such  apprentice  as  aforesaid,  sufficient  meat,  drink, 
victuals,  wearing  apparel,  bedding,  and  other  necessaries  proper  and  -^-P^ 
requisite  for  the  sustenance,  support,  maintenance,  clothing,  covering,    / 
and  resting  the  body  of  the  said  Sarah  Quill ;  by  means  whereof  she   .  , 
became  emaciated  and  almost  starved  to  death,  and  the  constitution 
and  frame  of  her  body  greatly  hurt  and  impaired,  &c. 

It  was  proved  that  Sarah  Quill,  a  girl  of  thirteen  or  fourteen  years 
of  age,  went  to  live  with  Friend  as  an  apprentice,  and  continued  with 
him  about  a  year.^  It  was  objected,  on  behalf  of  the  prisoners,  that 
the  evidence  was  not  sufficient  to  prove  the  relation  of  master  and 
apprentice,  so  as  to  create  the  legal  obligation  on  the  master  to  pro- 
vide for  the  apprentice  sufficient  meat,  clothing,  &c.,  a  breach  of 
which  would  subject  him  to  a  criminal  prosecution. 

The  learned  judge  permitted  the  prosecution  to  proceed,  as  the 
indictment  was  in  other  respects  fully  supported  by  the  evidence.  The 
jury  found  John  Friend  guilty,  but  acquitted  Anne,  his  wife.  The 
learned  judge  thought  it  best  to  pass  sentence  of  imprisonment  on  the 
prisoner  ;  that  in  case  the  judges  should  be  of  opinion  that  the  above 
evidence  did  not  support  the  indictment,  a  pardon  might  be  obtained. 

At  a  meeting  of  all  the  judges  at  Lord  Kenyou's  chambers  on  the 
first  day  of  Michaelmas  term,  1801,  this  case  was  ordered  to  stand 
over  for  further  consideration  to  the  first  day  of  the  next  Hilary 
term  ;  on  that  day  it  was  further  adjourned  ;  and  after  Hilary  term, 
viz.  on  the  25th  of  February,  1802,  was  considered  at  a  meeting  of  all 
the  judges  (except  Lord  Kenyon  and  Mr.  Justice  Rooke).  The  gen- 
eral opinion  was,  that  it  was  an  indictable  offence,  as  a  misdemeanor, 

1  The  statement  of  facts  has  been  abridged.  —  Ed. 


46  EEGINA   V.   LOWE.  [CHAP.    II. 

to  refuse  or  neglect  to  provide  sufficient  food,  bedding,  &c.,  to  any- 
infant  of  tender  years  unable  to  provide  for  and  take  care  of  itself 
(whether  such  infant  were  child,  apprentice,  or  servant),  whom  a  man 
was  obliged  by  duty  or  contract  to  provide  for,  so  as  thereby  to 
injure  its  health  ;  but  that,  in  the  present  case,  the  indictment  was 
defective  in  not  stating  the  child  to  be  of  tender  years  and  unable  to 
p^rovide  for  itself.  However,  as  in  the  present  case,  the  objection 
was  taken  to  the  evidence  not  supporting  the  indictment,  rather  than 
to  the  indictment  itself  ;  and  there  being  some  difference  of  opinion,  all 
the  judges  thought  it  right  that  the  final  decision  should  be  adjourned^ 
and  that  the  prisoner  should  suffer  the  whole  of  his  imprisonment. 

Mr.  .Justice  Chambre  thought  that  it  was  not  in  any  manner  an 
indictable  offence,  being  founded  wholly  on  contract. 


REGINA   V.   LOWE. 
"Worcestershire  Assizes.     1850. 

[Reported  3  Carrington  Sf  Kirwan,  123.] 

Manslaughter.  —  The  prisoner  was  indicted  for  the  manslaughter 
of  Thomas  Tibbitts. 

It  appeared  that  he  was  an  engineer,  and  that  his  duty  was  to  man- 
age a  steam-engine  employed  for  the  purpose  of  drawing  up  miners 
from  a  coal  pit ;  and  when  the  skip  containing  the  men  arrived  on  a 
level  with  the  pit's  mouth,  his  duty  was  to  stop  the  revolution  of 
the  windlass,  so  that  the  men  might  get  out.  He  was  the  only  man  so 
employed  on  the  premises.  On  the  day  in  question  he  deserted  his 
post,  leaving  the  engine  in  charge  of  an  ignorant  boy,  who,  before  the 
prisoner  went  away,  declared  himself  to  the  prisoner  to  be  utterly 
incompetent  to  manage  such  a  steam-engine  as  the  one  intrusted  to 
him.  The  prisoner  neglected  this  warning,  and  threatened  the  boy,  in 
case  he  refused  to  do  as  he  was  ordered.  The  boy  superintended  the 
raising  of  two  skips  from  the  pit  with  success,  but  on  the  arrival  at  the 
pit's  mouth  of  a  third,  containing  four  men,  he  was  unable  to  stop 
the  engine,  and  the  skip  being  drawn  over  the  pulley,  the  deceased, 
who  was  one  of  the  men,  was  thrown  down  into  the  shaft  of  the  pit 
and  killed  on  the  spot. 

It  appeared  that  the  engine  could  not  be  stopped  "  in  consequence 
of  the  slipper  being  too  low,"  an  error  which  it  was  proved  that  any 
competent  engineer  could  have  rectified,  but  which  the  boy  in  charge 
of  the  engine  could  not. 

Htuldleston,  for  the  prisoner,  contended  that  a  mere  omission  or 
neglect  of  duty  could  not  render  a  man  guilty  of  manslaughter,  and 


SECT.  II.]  "R^GINA   V.   SMITH.  47 

he  cited  the  cases  of  Rex  v.  Green,  7  C.  &  P.  156,  and  Rex  v.  Allen, 
7  C.  &  P.  153. 

Lord  Campbell,  C.  J.  I  am  clearly  of  opinion  that  a  man  ma}', 
b}-  a  neglect  of  dut}',  render  himself  liable  to  be  convicted  of  man- 
slaughter, or  even  of  murder.  Verdict  guilty. 


REGINA  V.  CONDE. 
Central  Criminal  Court.     1867. 

[Reported  10  Cox  C.  C.  547.] 

John   George    Conde    and   Marj'    Conde   were    indicted   for   and  i 

charged,  upon   the   coroner's  inquisition,    with   the  wilful   murder  oi 
William  Conde.  ^ 

George  Charles  Kernott,  licentiate  of  the  Apothecaries'  Company, 
proved  that  the  deceased  died  from  starvation  ;  death,  no  doubt,  having 
been  accelerated  by  beatings. 

Channell,  B.,  in  summing  up  the  case  to  the  jury  directed  them 
as  follows  :  If  the  prisoners  or  either  of  them  wilfully  withheld  neces- 
sar\'  food  from  the  deceased,  with  a  wilful  determination,  by  withhold- 
ing sustenance  which  was  requisite,  to  cause  his  death,  then  the  party 
so  withholding  such  food  is  guilty  of  murder.  If,  however,  the  prison- 
ers had  the  means  to  supph'  necessaries,  the  want  of  which  had  led  to 
the  death  of  the  deceased,  and  having  the  means  to  supply  such  neces- 
saries, negligently  though  not  wilfulh'  withheld  food  which  if  admin- 
istered would  have  sustained  life,  and  so  caused  the  death  of  the 
deceased,  then  tliat  would  amount  to  the  crime  of  manslaughter  in 
the  person  so  withholding  the  food. 

Mary  Conde  guilt  >j  of  manslaughter. 
John  George  Conde  not  guilty. 


REGINA  V.  SMITH. 

Carlisle  Assizes.     1869. 

{Reported  11  Cox  C.  C.  210.1    ,.  , 

Thomas  Smith  was  indicted  for  the  manslaughter  of  Richard  Gibson, 
at  Dearham,  on  the  8th  of  February,  1869,  nnder  the  following  circum- 
stances : 

1  Most  of  the  evidence  presented  in  this  case  has  been  omitted. 


\ 


48  REGINA   V.    WHITE.  [CHAP.  II. 

The  prisoner  was  employed  by  a  Mr.  Harrison,  an  extensive  colliery 
proprietor  near  Dearbain,  and  wlio  was  also  the  owner  of  a  tramway 
which  crossed  the  Mary  port  and  Carlisle  turnpike  road.  It  was  tlie 
prisoner's  duty  to  give  warning  to  any  persons  when  any  trucks  might 
cross  the  said  road.  The  tramway  was  in  existence  before  the  road, 
and  in  the  act  by  which  the  road  was  made  there  was  no  clause  impos- 
ing on  Mr.  Harrison  the  duty  of  placing  a  watchman  where  the 
tramway  crossed  the  road.  On  the  8th  of  February,  1869,  the  deceased 
was  crossing  the  tramway,  having  received  no  warning  that  any  trucks 
were  about  to  cross  the  road.  As  he  was  crossing,  however,  he  was 
knocked  down  by  some  trucks  and  was  killed.  On  inquiry  it  appeared 
that  the  prisoner  was  absent  from  his  post  at  that  time,  although  he 
had  strict  orders  never  to  be  absent. 

Campbell  Foster,  for  the  prisoner,  contended  that,  it  being  an 
act  of  omission  such  omission  ought  to  have  been  stated  in  the 
indictment. 

The  learned  judge  [Lush,  J.]  held  that  under  the  words  "  did 
feloniously  kill  and  slay  "  it  was  unnecessary  to  state  in  the  indict- 
ment that  it  was  an  act  of  omission  on  the  part  of  the  prisoner  which 
caused  the  death  of  the  deceased. 

Camj)heU  Foster  then  contended  that  the  facts  of  the  case  disclosed 
no  duty  between  the  prisoner  and  the  public. 

In  this  the  learned  judge  concurred,  saying  that,  there  being  no 
clause  in  the  act  compelling  Mr.  Harrison  to  place  a  watchman  where 
the  tramway  crossed  the  road,  the  prisoner  was  merely  the  private  ser- 
vant of  Mr.  Harrison  ,  and  that  consequently  his  negligence  did  not 
constitute  such  a  breach  of  duty  as  to  make  him  guilty  of  manslaughter. 

Priso7ier  discharged. 


REGINA  V.  ^YHITE. 

Court  for  Crown  Cases  Reserved.     1871. 

[Reported  L.  Z2.  1  C.  C.  311.] 

Case  stated  bj-  the  Chairman  of  the  Hants  Quarter  Sessions. 

Indictment  under  24  &  25  Vict.  c.  100,  s.  27  (1),  for  unlawfully  and 
wilfulh-  abandoning  and  exposing  a  child  under  the  age  of  two  years, 
whereby  the  life  of  the  child  was  endangered. 

At  the  trial  at  Winchester,  it  appeared  from  the  evidence  that  Emily 
White  (the  wife  of  William  White),  who  was  not  included  in  the  indict- 
ment, was  the  mother  of  the  child,  which  was  about  nine  months  old  at 
the  time  mentioned  in  the  indictment.  On  the  19th  of  October,  1870, 
she  had  an  interview  with  her  husband,  from  whom  she  had  been  living 
apart  since  the  11th  of  August  of  the  same  year,  and  asked  him  if  he 
intended  to  give  her  mone\-  or  victuals  ;  he  passed  by  her  without  an« 


SECT.  II.]  EEGINA    V.    WHITE.  49 

swering,  and  went  into  his  house  ;  this  was  about  7  p.  m.     His  mother,  -y  ,        *     ViXi^ 
the  prisoner,  Maria  White,  shut  the  wicket  of  the  garden,  and  forbade  -J  ,      Z! 

his  wife  from  coming  in  ;  the  wife  then  went  to  the  door  of  the  house, 
laid  the  child  down  close  to  the  door,  and  called  out,  ^  Bill,  here  's  your    ^ 
child,  I  can't  keep  it — I  am  gone."     She  left,  and  was  seen  no  more  p 
that  night.      Shortly  after,   AVilliam   White  came  out  of  the   house, 
stepped  over  the  child,  and  went  away.     About  8.30  p.  m.  two  wit-^-^'^^    ^' 
nesses  found  the  child  lying  in  the  road,  outside  of  the  wicket  of  the 
garden,  which  was  a  few  yards  from  the  house-door;  it  was  dressed  in 
short  clothes,  with  nothing  on  its  head ;  they  remained  at  the  spot  till 
about  10  p.  M.,  when  William  White  came  home.     They  told  him  that 
his  child  was  lying  in  the  road:  his  answer  was,  "  It  must  bide  there 
for  what  he  knew,  and  then  the  mother  ought  to  be  taken  up  for  the 
murder  of  it."    Another  witness,  Maria  Thorn  (the  mother  of  his  wife), 
deposed  also  to  the  fact  that  at  about  the  same  time,  in  answer  to  her  i-uA  y 

observation  that  he  ought  to  take  the  child  in,  he  said,  "  He  should  not  -         /! 

touch  it  —  those  that  put  it  there  must  come  and  take  it."     She  then  r^ 

went  into  the  house.     About  11  p.  m.,  one  of  the  two  witnesses  went 
for  a  police  constable,  and  returned  with  him  to  the  place  about  1  a.  m., 
when  the  child  was  found  lying  on  its  face  in  the  road,  with  its  clothes     J  nil    y)  Ji 
blown  over  its  waist,  and  cold  and  stiff.     The  constable  took  charge  of  -^^^^ 

it,  and  by  his  care  it  was  restored  to  animation.  At  4.30  a.  m.  the  con- 
stable went  to  the  house,  and  asked  William  White  if  he  knew  where 
his  child  was  ;  he  said,  ''No."  On  being  asked  if  he  knew  it  was  in 
the  road,  he  answered,  ''Yes."  It  appeared  that,  during  the  time  which 
elapsed  between  William  White  leaving  his  house,  about  7  p.  m.,  and 
his  return,  about  10  p.  m.,  he  had  been  to  the  police  constable  stationed 
at  Beaulieu,  and  told  him  that  there  had  been  a  disturbance  between 
him  and  his  wife,  and  wished  him  to  come  up  and  settle  it,  but  he  did 
not  say  an3'thing  about  the  child. 

The  prisoner's  counsel  objected  that  upon  these  facts  there  was  no 
evidence  of  abandonment  or  exposure,  under  the  Act,  by  William 
White. 

He  also  objected  that  there  was  no  evidence  against  John  White  and 
Maria  White. 

The  Court  were  of  opinion  that  there  was  no  evidence  against  the 
two  last-named  prisoners,  but  overruled  the  objection  as  to  William 
White,  as  to  whom  the  case  was  left  to  the  jury,  who  found  him 
guilty. 

The  question  for  the  Court  was,  whether  the  prisoner,  William  While, 
was  properly  convicted  upon  the  facts  as  above  stated. 

April  29.     No  counsel  appeared.  Cur  adv.  vult. 

May  6.  Bovill,  C.  J.  We  have  considered  this  case,  and  we  are  of 
opinion  that  the  conviction  was  right,  and  ought  to  be  affirmed.  The 
prisoner  was  indicted,  under  24  «fc  25  Vict.  c.  100,  s.  27,  for  unlawfully 
abandoning  and  exposing  a  child,  under  the  age  of  two  years,  whereby 
its  life  was  endangered.     On  the  facts  stated  in  the  case  the  objection 


50  EEGINA   V.   "WHITE.  [CHAP.  II. 

was  taken  that  there  was  no  evidence  of  abandonment  or  exposure. 
Now,  the  prisoner  was  the  father  of  the  child,  and  as  such  was  entitled 
to  the  custod}-  and  control  of  it,  and  was  not  only  morally  but  legally 
bound  to  provide  for  it.  Then  it  appears  that  when  the  child  was  lying 
at  the  door  he  saw  it,  stepped  over  it,  and  left  it  there.  Afterwards, 
when  the  child  was  in  the  road,  he  knew  it  was  there.  I  am  clearl}-  of 
opinion  that  there  was  evidence  here  upon  which  the  jury  might  and 
ought  to  convict  the  prisoner.  Instead  of  protecting  and  providing  for 
the  child,  as  it  was  his  duty  to  do,  he  allowed  it  to  remain  lying,  first 
at  his  door,  and  afterwards  in  the  road,  insufficiently  clothed,  and  at  a 
time  of  j^ear  when  the  result  was  likely  to  be  the  child's  death.  I  think, 
therefore,  he  was  guilty  both  of  abandonment  and  exposure. 

Martin,  B.  I  am  of  the  same  opinion,  though  I  have  entertained 
some  doubt  upon  the  question.  The  statute  makes  it  an  offence  un- 
lawfully to  abandon  or  expose  a  child,  and,  construing  these  words 
according  to  their  natural  meaning,  I  thought  at  first  that  thev  could 
onl}'  apph'  to  persons  who  hud  had  the  actual  custody  and  possession 
of  the  child.  But  as  the  prisoner  here  was  the  father  of  the  child, 
entitled  to  its  custody  and  legally  bound  to  its  protection,  I  do  not 
differ  from  the  rest  of  the  Court. 

Bramwell,  B.  I  am  of  the  same  opinion.  If  the  person  who  had 
had  the  actual  custody  of  the  child,  and  who  left  it  at  its  father's  door, 
had  been  a  stranger  with  whom  it  had  been  left  at  nurse,  there  could, 
I  think,  have  been  no  doubt  about  the  case  ;  and  I  do  not  think  the 
fact  that  it  was  the  mother  makes  any  difference. 

Blackburn,  J.  I  am  of  the  same  opinion.  The  question  turns  upon 
the  meaning  of  the  words  "abandon  or  expose"  in  the  statute.  The 
Court,  before  whom  the  prisoner  was  tried,  were  right  in  directing  the 
acquittal  of  the  two  other  persons  accused,  because  there  was  no  legal 
duty  upon  them  to  protect  the  child,  but  only  a  duty  of  imperfect  obli- 
gation. But  the  father's  case  is  different ;  for  upon  him  there  is  a  strict 
legal  duty  to  protect  the  child.  And  when  the  child  is  left  in  a  position 
of  danger  of  which  he  knows,  and  from  which  he  has  full  power  to 
remove  it,  and  he  neglects  his  duty  of  protection,  and  lets  the  child 
remain  in  danger,  I  think  this  is  an  exposure  and  abandonment  b}'  him. 
If  the  child  had  died,  the  facts  were  such  that  a  jur}'  might  have  con- 
victed him  of  murder,  though  the}'  might  have  taken  a  more  merciful 
view,  and  found  him  guilty  only  of  manslaughter;  and  as  the  child, 
though  its  life  was  endangered,  did  not  die,  the  case  is  within  the 
section. 

Channell,  B.  My  Brother  Byles,  who  was  a  member  of  the  Court 
when  the  case  was  first  before  the  Court,  concurs  in  the  judgment; 
and,  having  had  an  opportunity  of  considering  the  case  this  morning, 
I  am  of  the  same  opinion.  Conviction  affirmed. 


/ 


SECT.il]  ._  REGINA   V.   DOWNES.  51 

C     / 
REGINA  V.   DOWNES.  t  '^' 

.'/  ■  . 
Crown  Case  Reserved.     1875. 

V.' 

[Reported  13  Cox  C.  C.  111.]  'J   — 

Case  reserved  for  the  opinion  of  this  court  b}-  Blackburn,  J.^ 

1.  The  prisoner  was  indicted  at  the  Central  Criminal  Cpurt  for  the 
manslaughter  of  Charles  Downes. 

2.  It  appeared  on  the  trial  before  me  l\y  the  evidence  that  Charles 
Downes  was  an  infant  who,  at  the  time  of  his  death,  was  a  little  more 
than  two  3'ears  old.  The  child  had  been  ill,  and  wasting  awa\'  for 
eight  or  nine  months  before  its  death.  The  prisoner,  who  resided  at 
Woolwich,  was  the  father  of  the  deceased,  and  had  during  the  whole  of 
this  time  the  custody  of  the  child. 

3.  The  prisoner  was  one  of  a  sect  who  call  themselves  "  The  Peculiar     j 
People." 

4.  During  the  whole  period  of  the  child's  illness  he  did  not  procure         ^ 
any  skilled  advice   as  to  the  treatment  of  the  child,  but  left  it  to  the 
charge  of  women   who  belonged  to  his  sect,  and  called   in   at  inter- 
vals George  Hurry,  an  engine  driver,  who  prayed  over  the  child  and 
anointed  it  with  oil. 

5.  The  reason  of  this  course  of  conduct  was  explained  by  George 
Hurr\",  who  was  called  as  a  witness. 

6.  He  stated  that  the  Peculiar  People  never  called  in  medical  advice 
or  gave  medicines  in  case  of  sickness.  The}'  had  religious  objections 
to  doing  so.  Thev  called  in  the  elders  of  the  church,  who  praN-ed  over 
the  sick  person,  anointing  him  with  oil  in  the  name  of  the  Lord.  This 
he  said  the}^  did  in  literal  compliance  with  the  directions  in  the  14th 
and  15th  verses  of  the  fifth  chapter  of  the  Epistle  of  St.  James,  and  in 
hope  that  the  cure  would  follow. 

7.  This  course  was  pursued  with  regard  to  the  deceased  infant  during 
its  illness.  The  prisoner  consulted  the  witness  Huny  as  to  what  was 
the  matter  with  the  child,  and  as  to  what  should  be  given  to  it.  The}' 
thought  it  was  suffering  from  teething  ;  and  he  advised  the  parents  to 
give  it  port  wine,  eggs,  arrowroot,  and  other  articles  of  diet  which  he 
thought  suitable  for  a  child  suffering  from  such  a  complaint,  all  of  which 
were  supplied  accordingly.  There  was  no  evidence  that  this  treatment 
was  mischievous,  and  thougli  this  was  probably  not  logically  consistent 
with  the  doctrines  of  his  sect  as  described  by  him,  I  saw  no  reason  to 
doubt  that  it  was  all  done  in  perfect  sincerity. 

10.  It  was  admitted  on  the  part  of  the  prosecution  that  the  child 
was  kindly  treated,  kept  clean,  and  furnished  with  sufficient  food,  and 
nursed  kindly  by  the  mother  and  the  women  of  the  sect. 

1  Part  of  the  statement  of  the  case,  argument  of  counsel,  and  the  opinion  of  Mellob, 
J.,  are  omitted. 


rr 


52  KEGINA   V.   DOWNES.  [CHAP.  II. 

11.  Evidence  was  then  given  that  the  prisoner  had  sufficient  means 
to  procure  skilled  advice,  which  was  easih-  to  be  obtained  at  Woolwich. 
That  neither  he  nor  the  elder  had  an}'  competent  skill.  The  disease  of 
which  the  child  died  having  nothing  whatever  to  do  with  teething,  but 
being  chronic  inflammation  of  the  lungs  and  pleura,  which  was  of  long 
standing,  and  was  a  disease  which  might  have  l)een  cured  at  any  time 
if  competent  advice  had  been  obtained,  probably  though  not  certainly, 
would  have  been  so  cured,  if  the  advice  had  been  called  in  in  the  earlj- 
stages  of  the  complaint. 

12.  The  prisoner  in  his  own  defence  said  that  he  sincere!}'  believed 
that  by  abstaining  from  calling  in  medical  aid  he  gave  the  child  the 
best  chance  of  recovery,  as,  if  he  showed  a  want  of  faith  he  thought  he 
could  not  reh'  on  the  promise  which  he  thought  was  given. 

13.  The  prisoner  had  no  counsel. 

1.5.  I  told  the  jury  that  the  law  casts  on  the  father  who  has  the 
custody  of  a  helpless  infant  a  duty  to  provide  according  to  his  ability 
all  that  is  reasonabh'  necessary  for  the  child,  including,  if  the  child  is 
so  ill  as  to  require  it,  the  advice  of  persons  reasonabl}'  believed  to  have 
competent  medical  skill,  and  that  if  death  ensues  from  the  neglect  of 
this  duty  it  is  manslaughter  in  the  father  neglecting  the  dut}'. 

I  told  them  that  I  did  not,  as  at  present  advised,  think  it  any  defence 
that  the  prisoner  sincerely  believed  that  he  ought  not  to  provide  such 
advice,  nor  that  he  believed  that  he  was  doing  the  best  for  the  child 
if  he  had  not,  in  fact,  competent  skill  and  knowledge  himself.  After 
explaining  this  more  fully  I  asked  the  jury  four  questions  which  to 
prevent  any  risk  of  mistake,  I  reduced  to  writing  and  handed  to  them. 
They  answered  all  in  the  affirmative. 

16.  The  following  is  a  copy  of  the  writing  I  handed  to  the  jury  and 
their  answers. 

Did  tlie  prisoner  neglect  to  procure  medical  aid  for  the  helpless 
infant  when  it  was  in  fact  reasonable  so  to  do,  and  he  had  the  ability? 
—  Yes. 

Was  the  death  caused  by  that  neglect?  —  Yes. 

Unless  both  of  these  are  proved  he  is  not  guilty.  If  both  proved 
find  him  guilty,  but  then  say  further, 

Did  the  prisoner  botia  fide,  though  erroneously,  believe  that  medical 
advice  was  not  required  for  the  child?  —  Yes. 

Or  bond  fide  beheve  that  it  was  wrong  to  call  in  medical  aid?  —  Yes. 

I  thereupon  directed  the  verdict  of  guilty  to  be  entered,  and  admitted 
the  prisoner  to  bail. 

The  question  for  the  opinion  of  this  court  is  whether  the  conviction 
so  obtained  on  this  direction  and  those  findings  should  stand  or  be  set 
aside.  Colin  Blackburn. 

No  counsel  was  instructed  to  argue  for  the  prisoner. 

J).   Straight,  for  the  prosecution.     The  31  &  32  Vict.  c.  122,  s.  37, 

makes  it  an  offence  for  a  parent  wilfully  to  neglect  to  provide  adequate 

it"'  food,  clothing,  medical  aid,  or  lodging  for  a  child  under  fourteen  years 


SECT.  II.]  REGINA   V.   DOWNES.  53 

of  age  in  his  custody  whereby  the  health  of  the  child  is,  or  has  been,  or 
is  likely  to  be  seriously  injured.  [Mellor,  J.  The  words  of  the  sec- 
tion ''wilfully  neglect"  mean  intentionally  or  purposely  omit  to  call 
in  medical  aid.  Lord  Coleridge,  C.  J.  In  Reg,  v,  Wagstatfe,  10  Cox 
C.  C.  530,  an  indictment  for  manslaughter  against  parents  of  the  same 
religious  sect  as  the  prisoner  in  this  case  for  neglecting  to  provide 
medical  aid  for  the  child,  who  died  in  consequence  of  such  neglect, 
Willes,  J.,  upon  similar  facts,  seems  to  have  been  of  opinion  that  the 
indictment  could  not  be  sustained,  but  that  was  before  the  31  &  32 
Vict.  c.  122,  s.  37,  passed.  And  in  the  case  of  Reg.  v.  Hines/  before 
Pigott,  B.,  that  statute  was  not  brought  to  his  attention.] 

Coleridge,  C.  J.  I  think  that  this  conviction  should  be  affirmed. 
For  my  own  part,  but  for  the  statute  31  «fe  32  Vict.  c.  122,  s.  37, 1  should 
have  much  doubt  about  this  case,  and  should  have  desired  it  to  be  further 
argued  and  considered.  Perhaps  it  is  enough  to  say  that  the  opinions 
of  Willes,  J.,  and  Pigott,  B.,  are  deserving  of  grave  consideration.  The 
statute  31  &  32  Vict.  c.  122.  s.  37,  however,  is  a  strong  argument  in 
favor  of  the  conviction.     By  that  enactment  it  is  made  an  offence  pun- 

^  Reg.  V.  Hines  was  an  indictment  against  Hines  for  unlawfully  endangering  the 
life  of  his  child,  aged  two  years,  by  omitting  to  provide  proper  and  sufficient  medicine. 
At  the  opening  of  the  case.  Baron  Pigott  expressed  a  very  strong  opinion  that  it  could 
not  be  sustained.  Mr.  Poland  referred  to  Russell  on  Crimes,  p.  80,  to  the  case  of  Reg. 
f.  Smith,  8  C.  &  P.,  and  to  Reg.  v.  Hurry,  Central  Criminal  Court  Reports,  vol.  76, 
p.  63.  After  hearing  the  evidence  in  the  case,  and  Mr.  Poland  in  support  of  it,  Pigott, 
B.,  said,  "I  am  of  opinion  that  there  is  no  case  to  go  to  the  jury  of  any  crime  ;  I 
think  it  is  one  of  those  cases  in  which  a  parent,  instead  of  being  guilty  of  anything 
like  culpable  negligence,  has  done  everything  that  he  believed  to  be  necessary  for  the 
good  of  his  child.  That  he  may  be  one  of  those  persons  who  have  ver}-  perverted  views 
and  very  superstitious  views,  and  may  be  altogether  mistaking  that  doctrine  of  Scripture 
from  which  he  has  taken  his  course  of  proceeding  in  this  case,  may  be  perfectly  true ; 
but  that  there  is  anything  in  the  nature  of  a  duty  neglected,  that  is,  a  duty  which  he 
believed  or  knew  to  be  such,  in  this  instance,  I  am  clearly  of  opinion  the  evidence  does 
not  show.  On  the  contrary,  he  believed  his  duty  to  be  in  the  direction  in  which  he 
acted,  and  he  carried  out  that  duty  to  the  utmost  of  his  ability.  He  may  altogether 
have  mistaken  what  his  duty  was  ;  still  I  believe  it  was  an  honest  mistake.  It  may  be 
an  ignorant  mistake,  in  all  probability  it  is  the  result  of  ignorance  and  superstition, 
but  certainly  there  is  not  a  trace  of  anything  like  an  intentional  omission  of  duty  or  a 
culpable  omission  of  duty  within  the  meaning  of  that  expression  as  used  in  the  criminal 
law.  I  am  clearly  of  opinion  that  it  is  not  a  case  for  an  indictment,  nor  a  case  for  a 
judge  .to  deal  with  in  a  Criminal  Court.  If  the  Legislature  (as  they  have  done  in 
dealing  with  the  case  of  the  [)revention  of  small  pox),  are  minded  to  pass  a  law  on  the 
subject,  that  is  a  different  matter,  and  it  would  be  quite  right  then  that  persons  should 
be  compelled  to  conform  to  it,  although  they  themselves  may  personally  object  to  it, 
because  it  is  the  law  of  the  society  in  which  they  live,  and  they  are  bound  by  that  law 
if  society  chooses  to  enact  it.  But  I  am  clearly  of  opinion  that  no  judge  sitting  in  a 
Criminal  Court,  without  any  direction  or  enactment  of  the  Legislature,  would  be  justi- 
fied in  saying  that  a  parent  who  exercised  his  best  judgment,  though  a  perverted  one, 
in  dealing  with  his  child  by  nursing  and  care  instead  of  calling  in  a  doctor  to  apply 
blisters,  leaches,  and  calomel,  was  guilty  of  criminal  negligence.  I  may  say  that  I  had 
an  opportunity  before  coming  into  court,  knowing  that  this  case  was  coming  on,  of 
speaking  of  it  to  Mr.  Justice  Quain,  and  the  learned  Recorder,  and  they  quite  concur 
in  the  view  I  have  propounded  and  upon  which  I  am  acting." 


54  REGINA  V.   INSTAN.  [CHAP.  II. 

ishable  summarily  if  any  parent  wilfully  neglects  to  provide  (iyiter  alia) 
medical  aid  for  bis  child  being  in  his  custody  under  the  age  of  fourteen 
years,  whereby  the  health  of  such  child  shall  have  been  or  shall  be 
likely  to  be  seriously  injured.  That  enactment  I  understand  to  mean 
that  if  an}-  parent  intentionally,  i.  e.,  with  the  knowledge  that  medical 
aid  is  to  be  obtained,  and  with  a  deliberate  intention  abstains  from  pro- 
viding it,  he  is  guilty  of  an  otfence.  Under  that  enactment  upon  these 
facts  the  prisoner  would  clearly  have  been  guilty  of  the  otfence  created 
by  it.  If  the  death  of  a  person  results  from  the  culpable  omission  of  a 
breach  of  duty  created  b\-  the  law,  the  death  so  caused  is  the  subject  of 
manslaughter.  In  this  case  there  was  a  duty  imposed  by  the  statute 
on  the  prisoner  to  provide  medical  aid  for  his  infant  child,  and  there 
was  the  deliberate  intention  not  to  obey  the  law;  whether  proceeding 
from  a  good  or  bad  motive  is  not  material.  The  necessary  ingredient 
to  constitute  the  crime  of  manslaughter  existed,  therefore,  in  this  case  ; 
and  for  that  reason  this  conviction  ought  to  be  affirmed. 

Bramwell,  B.  I  am  of  the  same  opinion.  The  31  «&  32  Vict.  c.  122, 
s.  37,  has  imposed  a  positive  and  absolute  duty  on  parents,  whatever 
their  conscientious  or  superstitious  opinions  ma}'  be,  to  provide  medical 
aid  for  their  infant  children  in  their  custody.  The  facts  show  that  the 
prisoner  thought  it  was  irreligious  to  call  in  medical  aid,  but  that  is  no 
excuse  for  not  obeying  the  law. 

Mellor  and  Grove,  JJ.,  and  Pollock,  B.,  concurred. 

Conviction  aj^rmed. 


REGINA  V.   INSTAN. 
/  Crown  Case  Reserved.     1893. 

\'  [Reported  [1893]  1  Q.  B.  450.] 

Case  stated  by  Day,  J. 

Kate  Instan  was  tried  before  me  at  the  last  assizes  for  the  county  of 
"Worcester  upon  a  charge  of  feloniously  killing  one  Ann  Hunt.  The 
prisoner,  who  is  between  thirty  and  forty  years  of  age  and  unmarried, 
had  no  occupation  and  no  means  of  her  own  of  living.  She  was  a 
niece  of  the  deceased. 

At  the  time  of  the  committal  of  the  alleged  offence,  and  for  some 
time  previous  thereto,  she  had  been  living  with  and  had  been  main- 
tained by  the  deceased.  Deceased  was  a  woman  of  some  seventy- 
three  years  of  age,  and  until  a  few  weeks  before  her  death  was  healthy 
and  able  to  take  care  of  herself.  She  was  possessed  of  a  small  life 
income,  and  had  in  the  house  in  which  she  lived  some  little  furniture, 
and  a  few  other  articles  of  trifling  value.  The  two  women  lived  to- 
gether in  a  house  taken  by  the  deceased  ;  no  one  lived  with  them  or 
in  auv  wav  attended  to  them. 


SECT.  II.]  REGINA   V.   INST  AN.  55 

The  deceased  shortly  before  her  death  suffered  from  gangrene  in 
the  leg,  which  rendered  her  during  the  last  ten  days  of  her  life  quite 
unable  to  attend  to  herself  or  to  move  about  or  to  do  anything  to  pro- 
cure assistance.  No  one  but  the  prisoner  had  previous  to  the  death 
any  knowledge  of  the  condition  in  which  her  aunt  thus  was.  The 
prisoner  continued  to  live  in  the  house  at  the  cost  of  the  deceased, 
and  took  fn  the  food  supplied  by  the  tradespeople ;  but  does  not 
appear  to  have  given  any  to  the  deceased,  and  she  certainly  did  not 
give  or  procure  any  medical  or  nursing  attendance  to  or  for  her,  or 
give  notice  to  an}'  neighbor  of  her  condition  or  wants,  although  she 
had  abundant  opportunit}'  and  occasion  to  do  so. 

The  body  of  the  deceased  was  on  August  2,  while  the  prisoner  was 
still  living  in  the  house,  found  much  decomposed,  partially  dressed  in 
her  da}'  clothes,  and  lying  parti}'  on  the  ground  and  partly  prone  upon 
the  bed.  The  death  probably  occurred  from  four  to  seven  days  before 
August  3,  the  date  of  the  post-mortem  examination  of  the  body.  The 
cause  of  death  was  exhaustion  caused  by  the  gangrene,  but  substan- 
tially accelerated  by  neglect,  want  of  food,  of  nursing,  and  of  medical 
attendance  during  several  days  previous  to  the  death.  All  these  wants 
could  and  would  have  been  supplied  if  any  notice  of  the  condition  of 
the  deceased  had  been  given  by  the  prisoner  to  any  of  the  neighbors, 
of  whom  there  were  several  living  in  adjoining  houses,  or  to  the  rela- 
tions of  the  deceased,  who  lived  within  a  few  miles.  It  was  proved 
that  the  prisoner,  while  the  deceased  must  have  been  just  about  dying, 
had  conversations  with  neighbors  about  the  deceased,  but  did  not 
avail  herself  of  the  opportunities  thus  afforded  of  disclosing  the  con- 
dition in  which  she  then  was. 

At  the  close  of  the  case  it  was  objected  on  behalf  of  the  prisoner 
that  there  was  no  evidence  of  any  legal  duty  such  as  would  bind  the 
prisoner  to  give  or  to  procure  any  food,  or  nursing,  or  attendance  to 
or  for  the  deceased,  or  to  give  any  notice  to  any  one  that  such  was 
required.  I  thought  it  better  not  to  stop  the  case,  but  to  leave  it  to 
the  jury  to  say  whether,  having  regard  to  the  circumstances  under 
-which  the  prisoner  lived  with  the  deceased,  and  continued  to  occupy 
the  house,  and  to  take  the  food  provided  at  the  expense  of  the  de- 
ceased, while  the  deceased  was,  as  she  knew,  unable  to  communicate 
with  any  other  person  and  thus  to  procure  necessaries  for  herself,  the 
prisoner  did  or  did  not  impliedly  undertake  with  the  deceased  either  to 
wait  upon  and  attend  to  her  herself,  or  to  communicate  to  persons  out- 
side the  house  the  knowledge  of  her  helpless  condition  ;  and  I  told 
them  that  if  they  came  to  the  conclusion  that  she  did  so  undertake, 
and  that  the  death  of  the  deceased  was  substantially  accelerated  by 
her  failure  to  carry  out  such  undertaking,  they  might  find  the  prisoner 
guilty  of  manslaughter,  but  that  otherwise  they  should  acquit  her. 
The  jury  found  the  prisoner  guilty. 

If  the  facts  above  stated  do  not  afford  evidence  of  the  existence  of 
any  such  undertaking  or  duty,  then  the  conviction  is  to  be  quashed ; 
if  otiierwise.  it  is  to  stand. 


56  REGINA   V.    INSTAN.  [CHAP.  II. 

Vachell,  for  the  prisoper.  There  was  no  legal  duty  imposed  upon 
the  prisoner  to  provide  food  or  attendance  for  the  deceased  during  the 
last  ten  days  of  her  life  ;  there  was  certainl}-  no  such  duty  before  that 
time,  for  the  deceased  was  the  head  of  the  household  and  able  to  help 
herself.  Such  a  dut}'  as  is  here  sought  to  be  enforced  (;an  onl}'  arise 
b}'  virtue  of  a  statute  or  a  contract,  or  at  common  law.  It  must  be 
conceded  that  there  was  no  statutory  duty,  neither  was  there  an}'  duty 
at  common  law  ;  there  is  no  authority  for  the  existence  of  any  such 
common  law  duty  in  the  case  of  a  person  of  full  age  ;  in  such  a  case 
the  duty  can  only  arise  in  respect  of  an  undertaking,  express  or  im- 
plied. In  Rex  V.  Friend  it  was  held  to  be  an  indictable  offence  to 
refuse  or  neglect  to  provide  sufficient  food,  bedding,  &c.,  to  an  infant 
of  tender  years,  unable  to  provide  for  and  take  care  of  itself,  whom  a 
man  was  obliged  by  duty  or  contract  to  provide  for ;  but  the  decision 
was  in  terms  confined  to  such  cases,  and  the  indictment  was  held  to 
be  defective  in  not  stating  the  child  to  be  of  tender  years  and  unable 
to  provide  for  itself.  In  Reg.  v.  Shepherd  it  was  held  that  there 
was  no  duty  upon  a  woman  to  procure  a  midwife  for  her  daughter,  a 
girl  of  eighteen,  and  that  she  could  not  be  convicted  of  manslaughter 
for  omitting  to  do  so.  In  his  judgment,  Erie,  C  J.,  says:  "Here  the 
girl  was  beyond  the  age  of  childhood,  and  was  entirely  emancipated." 
In  the  case  of  a  person  of  full  age  such  a  dut}'  may  indeed  arise  out 
of  an  express  or  implied  undertaking :  Reg.  v.  Marriott,  where  a 
man  was  convicted  of  the  manslaughter  of  an  elderly  and  infirm 
woman,  whom  he  had  taken  home  to  live  in  his  house,  promising  to 
make  her  happy  and  comfortable.  In  summing  up  in  that  case,  Pat- 
teson,  J.,  said :  "  The  cases  which  have  happened  of  this  description 
have  been  generall}'  cases  of  children  and  servants,  where  the  duty 
was  apparent.  This  is  not  such  a  case  ;  but  it  will  be  for  j'ou  to  say 
whether,  from  the  wa}-  in  which  the  prisoner  treated  her,  he  had  not 
by  wa}'  of  contract,  in  some  way  or  other,  taken  upon  him  the  per- 
formance of  that  duty  which  she,  from  age  and  infirmity,  was  inca- 
pable of  doing."  In  the  present  case  there  was  no  evidence  of  any 
contract  or  undertaking  b}'  the  prisoner  to  take  care  of  her  aunt, 
though  no  doubt  she  was  under  a  moral  obligation  to  do  so. 

[Havtkins,  J.  Why  should  not  a  contract  be  implied  from  such  cir- 
cumstances as  those  in  this  case?  Suppose  two  people  agreed  to  live 
together  for  their  mutual  benefit,  would  not  the  mere  fact  of  their  living 
together  be  evidence  from  which  an  undertaking  might  be  implied?] 

[Cave,  J.  When  the  prisoner  took  in  food  paid  for  with  the  de- 
ceased's mone}',  she  had  no  right  to  apply  it  all  for  her  own  use.  Did 
she  not  then  undertake  a  dut\'  towards  the  deceased  ?] 

Not  by  way  of  contract  so  as  to  raise  a  legal  duty  ;  it  was  nothing 
more  than  a  duty  of  imperfect  obligation. 

Lord  Coleridge,  C.  J.  We  are  all  of  opinion  that  this  conviction 
must  be  affirmed.  It  would  not  be  correct  to  say  that  every  moral 
obligation  involves  a  legal  duty  ;  but  every  legal  duty  is  founded  on  a 


SECT.  IL]  REX   V.  PITTWOOD.  57 

moral  obligation.  A  legal  common  law  duty  is  nothing  else  than  the 
enforcing  by  law  of  that  which  is  a  moral  obligation  without  legal 
enforcement.  There  can  be  no  question  in  this  case  that  it  was  the 
clear  duty  of  the  prisoner  to  impart  to  the  deceased  so  much  as  was 
necessary  to  sustain  life  of  the  food  which  she  from  time  to  time  took 
in,  and  which  was  paid  for  by  the  deceased's  own  mone\-  for  the  pur- 
pose of  the  maintenance  of  herself  and  the  prisoner ;  it  was  onl}' 
through  the  instrumentalit}'  of  the  prisoner  that  the  deceased  could 
get  the  food.  There  was,  therefore,  a  common  law  duty  imposed  upon 
the  prisoner  which  she  did  not  discharge. 

Nor  can  there  be  an}'  question  that  the  failure  of  the  prisoner  to  dis- 
charge her  legal  dut}-  at  least  accelerated  the  death  of  the  deceased,  if 
it  did  not  actually  cause  it.  There  is  no  case  directly  in  point ;  but  it 
would  be  a  slur  upon  and  a  discredit  to  the  administration  of  justice  in 
this  country  if  there  were  any  doubt  as  to  the  legal  principle,  or  as  to 
the  present  case  being  within  it.  The  prisoner  was  under  a  moral 
obligation  to  the  deceased  from  which  arose  a  legal  dut}'  towards  her ; 
that  legal  duty  the  prisoner  has  wilfully  and  deliberately  left  unper- 
formed, with  the  consequence  that  there  has  been  an  acceleration  of 
the  death  of  the  deceased  owing  to  the  non-performance  of  that  legal 
duty.  It  is  unnecessary  to  sa}'  more  than  that  upon  the  evidence  this 
conviction  was  most  properly  arrived  at. 

Hawkins,  Cave,  Day,  and  Collins,  JJ.,  concurred. 

Conviction  affirmed. 


REX  V.  PITTWOOD. 

Taunton  Assizes.     1902. 

[Reported  19  Times  Law  Rep.  37.] 

Philip  Pittwood  was  charged  with  the  manslaughter  of  Thomas 
White,  and  a  coroner's  inquisition  for  the  same  offence  was  also 
returned. 

It  appeared  that  the  prisoner  occupied  a  hut  as  a  gate-keeper  on  the 
Somerset  and  Dorset  Railway,  near  Glastonbury.  His  duties  were  to 
keep  the  gate  shut  whenever  a  train  was  passing  along  the  line,  which 
was  a  single  line,  and  not  many  trains  used  to  pass  during  the  day. 
His  hours  of  duty  were  from  7  in  the  morning  till  7  p.  m.  On  Julv  18, 
at  about  2.45  in  the  afternoon,  White  was  in  a  hay  cart  crossing  the 
line  with  several  others,  when  a  train  came  up  and  hit  the  cart,  White 
being  struck  and  killed.  Another  man  was  also  seriously  injured,  while 
the  three  remaining  men,  by  jumping  out  of  the  cart,  saved  their  lives. 
A  number  of  witnesses  were  called  to  show  that  it  was  really  only  an 


3 


58  EEX   V.    PITTWOOD.  [CHAP.  II. 

accommodation  road,  and  not  a  public  road.  It  was  shown  that  the 
train  was  going  at  a  very  fair  rate,  and  it  was  impossilile  to  stop  it,  as 
the  cart  was  only  seen  by  the  driver  a  few  yards  from  his  train.  The 
prisoner  gave  evidence  before  the  coroner,  and  his  deposition  was  put 
in,  and  in  it  he  stated  that  he  had  put  the  gate  open  about  ten  minutes 
beforejto^  let  a  cart-.pas.s.  ami  had  propped  it  open,  had  forgotten  to 
shut  it  again,  and  had  gone  to  have  some  luncheon.  For  the  defence 
it  was  suggested  that  there  was  onl}'  mere  inattention  on  the  part  of 
\  _the  prisoner,  and  no  criminal  negligence.  The  jury  returned  a  verdict 
of  ffuilty.  Mr.  Justice  Wright  passed  a  sentence  of  three  weeks' 
imprisonment  in  the  second  division,  but  allowed  the  prisoner  out  on 
his  own  recognizance  to  hear  the  points  of  law  to  be  argued  in  arrest  of 
judgment. 

Mr.  Simon,  on  behalf  of  the  prisoner,  submitted  that  there  was  no 
evidence  of  negligence  to  go  to  the  jury  ;  that  negligence  in  law  is 
want  of  due  care  ;  that  in  the  present  case  the  prisoner  was  not  bound 
to  take  an}-  care  ;  that  it  was  necessary  that  the  duty  to  take  care 
should  be  towards  the  person  who  complained ;  and  that,  in  the  pres- 
ent case,  the  prisoner  onl}'  contracted  with  his  employers,  —  the  rail- 
way company.  He  quoted  Reg.  r.  Smith,  11  Cox,  210,  decided  by 
Mr.  Justice  Lush.  Further,  he  submitted  that  the  man  who  was  killed 
was  not   the   man   for  whom   the   gate   was  opened.       [Mr.   Justice 

■  Wright.  —  The  jury  have  not  had  to  consider  whether  this  was  an 
accommodation  road  or  not.  That  question  could  not  be  left  to 
them.] 

Mr.  Justice  Wright,  without  calling  upon  the  prosecution,  gave 
judgment.  He  said  he  was  clearl}-  of  opinion  that  in  this  case  there 
was  gross  and  criminal  negligence,  as  the  man  was  paid  to  keep  the 
gate  shut  and  protect  the  public.     In  his  opinion  there  were  three 

I  grounds  on  which  the  verdict  could  be  supported  :  (1)  There  might  be 
cases  of  misfeasance  and  cases  of  mere  non-feasance.  Here  it  was 
quite  clear  there  was  evidence  of  misfeasance,  as  the  prisoner  directly 
contributed  to  the  accident.  (2)  A  man  might  incur  criminal  liability 
fiom  a  duty  arising  out  of  contract.  The  learned  Judge  quoted  in  sup- 
"{iort  of  this,  Reg.  v.  NichoUs,  13  Cox,  75  ;  Reg.  v.  Elliott,  16  Cox,  710  ; 
Reg.  V.  Benge,  4  F.  &  F.  504  ;  Reg.  r.  Hughes,  Dears.  &  B.  C.  C.  248. 
The  strongest  case  of  all  was,  perhaps,  Reg.  v.  Instan  (1893),  1  Q.  B. 
450,  and  that  case  clearly  governed  the  present  charge.  (8)  With 
regard  to  the  point  that  this  was  only  an  occupation  road,  he  clearly 
held  that  it  was  not,  as  the  company  had  assumed  the  liabilit}-  of  pro- 
tecting the  public  whenever  they  crossed  the  road.  There  was  no 
ground  for  stating  a  case  on  any  of  the  grounds  urged  on  behalf  of 
the  prisoner. 

The  prisoner  thereupon  surrendered  to  undergo  the  sentence  that 
had  been  passed  upon  him. 


SECT.  IL]  ANDERSON   V.   STATE.  59 

ANDERSON  v.   STATE. 

Texas  Court  of  Appeals.     1889. 

[Reported  27  Tex.  App.  177.] 

The  conviction  in  this  case  was  for  negligent  homicide,  and  the 
penalty'  assessed  against  each  of  the  appellants  was  a  fine  of  two 
hundred  and  fifty  dollars. 

The  indictment  impleaded  O.  Torgerson,  engineer,  J.  A.  DeCogne, 
firenmn,  and  the  appellants  as  brakemen  on  engine  number  eleven  of 
the  Houston,  East  &  West  Texas  Railwa}'  Company',  charging  them 
with  negligent  homicide  of  the  first  degree,  and  alleging  in  substance 
that  on  the  seventh  day  of  Februar}',  1887,  while  engaged  as  workmen 
in  running  said  engine  and  tender  on  said  railroad,  said  Torgerson, 
DeCogne,  Anderson,  and  Woods  did  back  said  engine  and  tender  negli- 
gently and  carelessly,  without  ringing  the  bell  or  blowing  the  whistle, 
and  without  giving  an}'  warning,  and  without  first  looking  to  see  if  an\' 
person  was  likely  to  be  injured  there bv,  and  bj-  said  negligence  and 
carelessness  one  Sing  Morgan  was  struck  by  said  engine  and  tender  so 
run,  and  the  death  of  said  Morgan  was  caused  by  said  negligence  and 
carelessness  —  the  said  Morgan  being  at  tlie  time  in  a  position  to  be 
struck  by  said  engine  and  tender  which  fact  would  have  been  known 
by  said  Torgerson,  DeCogne,  Anderson,  and  Woods  if  they  had  used 
that  degree  of  care  and  caution  which  a  man  of  ordinary  prudence 
would  use  under  like  circumstances,  there  being  then  and  there  an 
apparent  danger  of  causing  the  death  of  said  Morgan  and  of  other 
persons  passing  on  said  railroad  and  highway.^ 

WiLLSON,  J.  ...  As  we  view  the  evidence  and  the  law  applicable  [  |J  At. 
thereto,  this  conviction  is  not  warranted.  These  appellants  were  l^rake-  '  ^^-^^ 
men..  They  had  no  control  whatever  of  said  engine  and  tender.  They 
were  riding  upon  the  same  for  the  purpose  merelv  of  performing  their 
specific  duties  as  brakemen,  which  duties  had  no  connection  with  or 
relation  to  the  homicide.  It  was  the  exclusive  duty  of  the  engineer 
and  fireman  to  operate  said  engine  carefully ;  to  look  out  for  obstruc- 
tions upon  the  track  ;  to  give  signals  of  danger  when  necessary.  With 
these  duties  appellants  were  in  no  way  concerned.  The}'  had  no  right 
to  start  the  engine  in  motion,  to  blow  the  whistle,  to  ring  the  bell,  to 
stop  the  engine,  or  otherwise  to  control  its  movements.  They  per- 
formed no  act  which  connected  them  with  the  death  of  the  child.  It  is 
only  for  a  supposed  omission  of  duty  on  their  part  that  the\'  have  been 
convicted  of  negligent  homicide.  The\'  omitted  to  look  out  for  obstruc- 
tions on  the  track.  The}^  might  have  seen  the  child  in  time  to  save  its 
life,  but  the}'  omitted  to  see  him.  Or  ifthey  did  see  him  they  omitted 
to  stop  the  train,  or  to  signal  the  engineer  to  stop  it. 

1  The  evidence  and  part  of  the  opinion  dealing  with  the  form  of  the  indictment 
and  the  admissibility  of  certain  evidence  are  omitted.  —  Ed. 


r       \  I 


60  ANDERSON   V.    STATE.  [CHAP.  IL 

Were  these  omissions  criminal,  within  the  meaning  of  the  statute 
defining  negligent  homicide?  We  think  not,  because,  to  constitute 
criminal  negligence  or  carelessness,  there  must  be  a  violation  of  some 
duty  imposed  by  law  directl}'  or  impliedly-,  and  with  which  duty  the 
defendant  is  especially  charged.  Mr.  Wharton  says  :  "  Omissions  are 
not  the  basis  of  penal  action,  unless  the}*  constitute  a  defect  in  the  dis- 
charge of  a  responsibility  with  which  the  defendant  is  especially  in- 
vested." (Wharton  on  Hom.  sec.  72.)  Again,  this  author  says,  in 
treating  of  omissions  by  those  charged  with  machinery,  etc.:  "The 
responsibility  of  the  defendant  which  he  thus  fails  to  discharge  must 
be  exclusive  and  peremptory'.  A  stranger  who  sees  that  unless  a  rail- 
way switch  is  turned,  or  the  car  stopped,  an  accident  may  ensue,  is  not 
indictable  for  not  turning  the  switch  or  stopping  the  car.  The  reason 
for  this  is  obvious.  To  coerce,  by  criminal  prosecutions,  every  person 
to  supervise  all  other  persons  and  things,  would  destro}-  that  division 
of  labor  and  responsibility  b}'  which  alone  business  can  be  safely  con- 
ducted, and  would  establish  an  industrial  communism,  by  which  private 
enterprise  and  private  caution  would  be  extinguished.  Nothing  can  be 
effectually  guarded  when  ever3-thing  is  to  be  guarded  by  ever3'body. 
No  machinery'  could  be  properly  worked  if  eveiT  passerby  were  com- 
pelled by  the  terror  of  a  criminal  prosecution  to  rush  in  and  adjust 
anything  that  might  appear  to  him  to  be  wrong,  or  which  was  wrong, 
no  matter  how  it  miglit  happen  to  appear.  B3'  this  wild  and  irre- 
sponsible interference  even  the  simplest  forms  of  machinerj'  would 
be  speedily  destroyed."  (Ibid.  sec.  80.)  And  upon  the  subject  of 
omission  to  give  warning  of  danger,  the  same  author  says :  '•  The  test 
here  is,  is  such  notice  part  of  an  express  duty  with  which  the  defend- 
ant is  exclusivelv  charged?  If  so,  he  is  responsible  for  injury  which 
is  the  regular  and  natural  result  of  his  omission  ;  but  if  not  so  bound, 
he  is  not  so  responsible."     (Ibid.  sec.  81.) 

These  rules  of  the  common  law  are  not  inconsistent  with  our  statute, 
but  are  in  harmony  therewith,  as  we  construe  it.  As  we  understand 
both  the  common  law  and  the  statute,  there  can  be  no  criminal  negli- 
gence or  carelessness  by  omission  to  act,  unless  it  was  the  especial 
duty  of  the  party  to  perform  the  act  omitted.  Negligence  or  careless- 
ness by  omission  presupposes  dut}'  to  perform  the  act  omitted,  and  can 
not,  in  law,  be  imputed  except  upon  the  predicate  of  duty. 

In  this  case  the  evidence  is  uncontradicted  and  clear  that  appellants 
did  not  do  any  act  or  omit  to  do  any  legal  duty,  with  reference  to  the 
deceased  child.  In  law  they  are  no  more  responsible  for  the  death 
of  the  child  than  any  other  person  who  was  present  and  witnessed  the 
accident.  The}'  were  strangers  to  the  transaction,  in  contemplation 
of  the  law,  because  they  were  not  charged  with  any  duty  with  respect 
to  it. 

We  are  of  the  opinion  that  the  judgment  of  conviction  is  contrary  to 
the  law  and  the  evidence,  and  therefore  said  judgment  is  reversed  and 
the  cause  is  remanded.  Reversed  and  remanded. 


SECT.  II.]  BEATTIE  V.   STATE.  61 


■  BEATTIE    V.    STATE. 

Supreme  Court  of  Arkansas.     1904. 

[Reported  73  Ark.  428.] 

George  Beattie,  a  resident  of  Missouri,  was  arrested,  tried  and  con- 
victed on  a  charge  that,  being  a  resident  of  the  State  of  Missouri,  he 
did,  in  the  county  of  Sharp  and  State  of  Arkansas,  in  May,  1904,  herd, 
graze,  and  permit  to  run  at  large  about  nineteen  head  of  cattle.  He 
was  convicted,  and  fined  $100  before  a  justice  of  the  peace.  He  took 
an  appeal  to  the  Circuit  Court,  and  on  the  trial  there  the  Circuit  Judge 
made  the  following  findings  of  law  and  fact : 

"  In  this  case  I  find  that  the  defendant,  George  Beattie,  was  a  non- 
resident of  the  State  of  Arkansas,  and  was  a  resident  of  the  State 
of  Missouri ;  that  he  owned  land  in  the  latter  State  ;  that  his  land,  or 
at  least  a  part  of  it,  had  as  its  south  line,  the  State  line,  and  that  his 
residence  was  in  the  State  of  Missouri  about  one-half  of  one-quarter 
of  a  mile  north  of  the  State  line.  The  evidence  further  shows  that  he 
owned  eightv  acres  of  land  in  Arkansas.  The  testimony  shows  that 
he  would  turn  his  cattle  out  of  the  inclosure  in  Missouri,  knowing  that 
the}'  would  go  across  the  line  in  the  State  of  Arkansas  ;  that  he  would 
go  and  drive  them  out  of  said  State  for  the  purpose  of  salting  them, 
and  then  turn  them  out  when  they  would  go  across  into  Arkansas,  and 
that  this  was  done  repeatedly  during  the  year  prior  to  the  filing  of  the 
information  herein. 

"  I  find  that  if  defendant  turned  his  stock  on  the  range  in  Missouri 
with  no  one  to  look  after  them,  knowing  that  they  were  in  the  habit  of 
going  into  Arkansas,  and  that  they  did  go  into  Arkansas,  he  would 
be  guilty  of  a  violation  of  this  statute,  although  he  may  have  been  in 
the  State  of  Missouri  during  the  time. 

"  I  further  find  that  if  he  thus  permitted  his  stock  to  enter  the  State 
of  Arkansas,  and  went  into  said  State  for  the  purpose  of  driving  them 
home  to  be  salted,  and  then  turned  them  out  again,  he  would  be 
guilty." 

The  court  also  declared  the  law  to  be  that  the  fact  that  a  non- 
resident owned  land  in  this  State  did  not  authorize  him  to  herd,  graze, 
or  permit  his  stock  to  run  at  large  in  this  State,  though  he  had  the 
right  to  pasture  them  on  his  own  land. 

The  court  gave  other  instructions  of  law  on  motion  of  the  State  and 
defendant,  but  they  need  not  be  set  out  here,  for  the  substance  of  them 
is  contained  in  the  above  findings. 

The  court  found  that  defendant  was  guilty,  and  assessed  his  fine  at 
$100.     Defendant  appealed. 


62     KING   V.   INTERSTATE   CONSOLIDATED    STEEET   EY.    CO.      [CHAP.   II. 

EiDDiCK,  J.  This  is  an  appeal  from  a  judgment  convicting  a  non- 
resident defendant  and  assessing  a  fine  of  §100  against  him  for  per- 
mitting his  cattle  to  run  at  large  in  this  State. 

Now,  it  is  clear  that  our  statute  on  that  subject  does  not  forbid 
a  noni-esident,  whose  cattle  have  strayed  or  come  of  their  own  voli- 
tion into  this  State,  from  driving  them  out  again.  It  is  equally  clear 
that  it  does  not  subject  a  resident  of  Missouri,  who  turns  his  cattle 
at  large  in  that  State,  to  a  criminal  prosecution  and  fine  if  the  cattle 
I  afterwards  come  into  this  State;  for  the  Legislature  of  this  State  has 
\  no  power  to  punish  a  resident  of  Missouri  for  a  lawful  act  done  in  that 
State.  Nor  do  we  think  that  it  would  alter  the  case  if  the  defendant 
knew,  at  the  time  he  turned  them  at  large  in  Missouri,  that  they 
would  probably  come  into  Arkansas,  for  the  Legislature  of  this  State 
cannot  compel  the  residents  of  Missouri  who  live  near  the  State  line  to 
keep  their  cattle  in  inclosed  lots  or  fields  in  order  to  prevent  them 
I  from  coming  into  this  State,  and  we  do  not  think  that  was  the  inten- 
'^on  of  this  statute  to  do  so.  The  people  of  Missouri  have  the  right  to 
permit  their  cattle  to  run  at  large  in  that  State,  unless  forbidden  hy 
the  law  of  that  State  ;  and  if  the  people  of  this  State  desire  to  keep 
such  cattle  from  entering  this  State,  the}'  can  do  so  by  putting  up 
a  fence  along  the  line  between  this  State  and  Missouri  or  by  a  statute 
authorizing  the  cattle  of  nonresidents  which  stray  into  this  State  to  be 
impounded  and  kept  at  the  costs  of  the  owners.  But  to  undertake  to 
arrest  and  fine  a  resident  of  Missouri  because  he  does  not  prevent  his 
cattle  from  straj-ing  into  this  State  would  be  to  assume  a  jurisdiction 
over  the  residents  of  that  State  never  intended  hy  the  statute  and  be- 
yond the  power  of  the  Legislature  to  confer. 

The  evidence  in  the  case  was  conflicting,  and  some  of  it,  if  true, 
might  have  warranted  a  finding  that  the  defendant  was  guilty,  but  the 
finding  of  facts  b}'  the  court  has  evidence  to  support  it,  and,  taking 
that  as  true,  no  crime  was  committed. 

The  judgment  will  therefore  be  reversed,  and  the  cause  remanded 
for  a  new  trial. 


KING  V.  INTERSTATE  CONSOLIDATED  STREET 
RAILWAY  CO. 

Supreme  Court  of  Rhode  Island,  1902. 

[Reported  23  R.  I.  583.] 

TiLLiNGHAST,  J.  These  cases,  which  are  substantially  alike,  are 
before  us  on  demurrers  to  the  declarations.  We  will  consider  the 
first-named  case.  It  is  trespass  on  the  case  for  negligence,  and  sets  out, 
in  substance,  in  the  first  count  thereof,  that  the  plaintiff  was  em- 
ployed by  the  defendant  corporation  to  help  remove  snow  from  its 


SECT.  11.]     KING   V.   INTERSTATE   CONSOLIDATED    STREET    EY.    CO.      63 

tracks  between  Pawtucket,  R.  I.,  and  Attleboro,  Mass.,  in  very  cold 
weather  in  the  month  of  February,  1899;  that  the  work  had  to  be  done 
over  a  wide  tract  of  open  country,  remote  from  dwelling  houses  and 
other  habitations;  that  the  defendant  knew  that  the  work  of  remov- 
ing said  snow  and  ice  from  its  tracks  and  roadbed  in  said  open  country, 
in  \'iew  of  the  cold  and  stormy  weather,  was  very  trying,  exhausting, 
and  dangerous  to  the  laborers  engaged  therein,  and  that  it  was  the 
duty  of  the  defendant  corporation  to  furnish  sufficient  food  and  shelter 
to  the  plaintiff  during  the  continuance  of  said  work,  and  to  pro\'ide 
for  the  safety  of  the  plaintiff  wliile  so  employed,  and  to  carry  him  to 
his  home  in  Pawtucket  when  returning  from  said  work;  that  he  was 
ignorant  of  the  danger  attending  said  work  in  the  open  country  in 
cold  and  stormy  weather,  and  that  while  engaged  for  24  hours  therein, 
and  while  in  the  exercise  of  due  care,  and  in  ignorance  of  the  peril  to 
which  he  was  exposed,  both  of  his  feet  were  frozen,  of  which  fact  he 
informed  the  defendant's  agents  and  servants,  and  requested  them  to 
carry  liim  to  his  home,  in  Pawtucket,  but  that  the  defendant,  its  agents 
and  servants,  well  knowing  the  premises,  carelessly  and  negligently 
failed  to  provide  food  and  shelter  for  the  plaintiff;  and  that  the  freezing 
of  his  feet  was  due  to  the  failure  of  the  defendant  corporation,  its 
agents  and  servants,  to  supply  him  ^\-ith  food  and  shelter  while  so 
engaged.  It  is  further  alleged  that,  in  consequence  of  the  freezing 
of  plaintiff's  feet,  they  had  to  be  amputated,  whereby  he  was  disabled, 
etc.  The  second  count  differs  from  the  first  in  that  it  alleges  that, 
without  fault  on  his  part,  both  of  his  feet  were  frozen,  of  which  fact 
he  informed  the  defendant,  its  agents  and  servants,  and  requested  them 
to  carry  him  to  his  home,  in  Pawtucket,  which  they  carelessly  and 
negligently  refused  to  do,  and,  being  unable  to  procure  passage  to 
his  home,  he  was  obliged  to  make  his  way  there  on  his  hands  and 
knees,  and  was  engaged  in  making  said  jom-ney  from  7  o'clock  in  the 
evening  until  8  o'clock  the  next  morning.  And  he  avers  that  in  con- 
sequence thereof,  and  without  fault  on  his  part,  his  feet  were  so  badly 
frozen  that  they  afterwards  had  to  be  amputated,  and  that  it  was 
the  duty  of  the  defendant,  under  the  circumstances  set  forth,  to 
pro\ade  him  with  food  and  shelter  and  transportation  as  aforesaid. 
To  this  declaration  the  defendant  demurs  on  the  grounds  (1)  that 
the  defendant  owed  no  legal  duty  to  the  plaintiff  in  the  premises; 
(2)  that  the  alleged  negligence  was  not  the  proximate  cause  of  the 
accident;  (3)  that  the  danger  complained  of  was  obvious  to  the  plain- 
tiff, and  that  he  assumed  it  as  one  of  the  risks  of  his  employment; 
(4)  that  the  plaintiff  was  not  in  the  exercise  of  due  care;  and  (5)  that 
it  does  not  appear  from  the  declaration  that  the  defendant  was  guilty 
of  negligence.^  ...  i 

We  think  the  second  count  is  also  demurrable.     It  is  not  alleged 
that  the  defendant  corporation  conveyed  the  plaintiff  to  his  place  of 
^  So  much  of  the  opinion  as  discusses  the  first  count  is  omitted.  —  Ed. 


64     KING   V.    INTERSTATE   CONSOLIDATED    STREET    RY.    CO.      [CHAP.    II. 

work,  or  that  it  promised,  either  expressly  or  impUedly,  to  carry  him 
back  to  his  home;  and  it  is  not,  and  could  not  successfully  be,  con- 
tended that  it  is  any  part  of  the  duty  of  an  employer  to  carry  his  em- 
ployes to  or  from  their  place  of  work,  in  the  absence,  at  any  rate,  of 
some  custom,  understanding,  or  agreement  to  that  effect.  In  lonnone 
r.  Railroad  Co.,  21  R.  I.  452,  44  Atl.  592,  46  L.  R.  A.  730,  79  Am.  St. 
Rep.  812,  Matteson,  C.  J.,  in  delivering  the  opinion  of  the  court,  said: 
"The  carrying  of  the  deceased  after  his  day's  work  was  done  to  a 
'point  near  liis  home  is,  we  think,  to  be  regarded  not  as  creating  the 
relation  of  a  passenger,  but,  rather,  as  a  privilege  incidental  to  his 
contract  of  service,  granted  him  by  the  defendant,  of  which  he  availed 
himself  to  facilitate  his  return  to  his  home,  and  that  it  was  a  privilege 
accorded  to  him  merely  by  reason  of  his  contract  of  ser\nce."  Schu- 
maker  v.  Railroad  Co.,  46  Minn.  39,  48  N.  W.  559,  12  L.  R.  A.  257, 
cited  by  plaintiff's  counsel  in  support  of  this  count,  while  at  first  blush 
it  would  seem  to  sustain  the  same,  yet,  upon  more  careful  study,  we 
think  it  is  distinguishable  from  the  case  at  bar.  There  the  plaintiff  was 
sent  to  repair  a  wrecked  caboose  on  the  line  of  the  defendant's  road. 
It  was  extremely  cold,  and  a  vnllage  nine  miles  away  was  the  near- 
est point  at  which  he  could  get  food  and  shelter.  He  was  not  provided 
with  food  or  sufficient  clothing  for  exposure  to  such  weather.  The 
company  knew  this,  and  knew  that  he  relied  upon  its  sending  for 
him  in  the  evening.  It  did  not  do  so,  and  he  was  obliged  to  walk  back 
to  the  village,  and  by  reason  of  his  exposure  to  the  extreme  cold  he 
contracted  rheumatism  and  was  permanently  injured.  The  court  held 
that  he  was  entitled  to  recover.  The  case  was  different  from  the 
one  now  before  us,  in  this :  That  it  was  evidently  alleged  in  the  declara- 
tion (although  the  declaration  is  not  set  out  in  the  case)  that  the 
defendant  knew  of  the  plaintiff's  unprepared  condition  as  to  clothing, 
etc.,  and  also  knew  that  he  relied  on  the  defendant's  furnishing  him 
with  transportation  when  the  work  was  completed.  Whether,  in  case 
the  declaration  now  before  us  showed  such  a  state  of  facts,  we  should 
follow  that  case  and  sustain  it,  we  are  not  now  called  upon  to  decide. 
That  the  defendant's  conduct  toward  the  plaintiff  in  refusing  to  carry 
him  home  after  his  feet  were  frozen  was  highly  reprehensible,  morally 
speaking,  no  one  will  question.  Indeed,  it  is  well-nigh  inconceivable 
that  the  agents  and  servants  of  the  defendant  corporation  could 
have  been  guilty  of  so  gross  an  act  of  inhumanity.  But  courts  of  law 
can  only  take  notice  of  legal  rights,  duties,  and  obligations,  and  must 
decide  cases  in  accordance  therewith,  regardless  of  humanitarian 
questions.    The  demurrer  to  the  second  count  is  sustained. 

As  the  declaration  in  the  second-named  case,  namely,  John  Morri- 
son v.  Interstate  Consolidated  St.  Ry.  Co.,  is  the  same  as  the  one 
we  have  already  considered,  the  demurrer  thereto  is  also  sustained, 
and  the  cases  are  remanded  to  the  common  pleas  division  for  further 
proceedings. 


SECT.    II.]  PEOPLE   V.    BEARDSLEY.  65 


^'     i:^  ^^ 


PEOPLE  V.   BEARDSLEY.  ,  "^ 

Supreme  Court  of  Michigan,  1907.    . 

[Reported  150  Mich.  206.] 

McAlvay,  C.  J.  Respondent  was  convicted  of  manslaughter  be- 
fore the  circuit  court  for  Oakland  county,  and  was  sentenced  to  the 
State  prison  at  Jackson  for  a  minimum  term  of  one  year  and  a  maxi- 
mum term  not  to  exceed  five  years.  He  was  a  married  man  li\'ing  at 
Pontiac,  and  at  the  time  the  facts  herein  narrated  occurred,  he  was 
working  as  a  bartender  and  clerk  at  the  Columbia  Hotel.  He  lived 
with  his  wife  in  Pontiac,  occupying  two  rooms  on  the  ground  floor  of 
a  house.  Other  rooms  were  rented  to  tenants,  as  was  also  one  li\'ing 
room  in  the  basement.  His  wife  being  temporarily  absent  from  the 
city,  respondent  arranged  wnth  a  woman  named  Blanche  Burns,  who 
at  the  time  was  working  at  another  hotel,  to  go  to  his  apartments  with 
him.  He  had  been  acquainted  with  her  for  some  time.  They  knew 
each  other's  habits  and  character.  They  had  drunk  liquor  together, 
and  had  on  two  occasions  been  in  Detroit  and  spent  the  night  together 
in  houses  of  assignation.  On  the  evening  of  Saturday,  March  18, 
1905,  he  met  her  at  the  place  where  she  worked,  and  they  went  together 
to  his  place  of  residence.  They  at  once  began  to  drink  and  continued 
to  drink  steadily,  and  remained  together,  day  and  night,  from  that  time 
until  the  afternoon  of  the  Monday  following,  except  when  respondent 
went  to  his  work  on  Sunday  afternoon.  There  was  liquor  at  these 
rooms,  and  when  it  was  all  used  they  were  served  with  bottles  of  whis- 
key and  beer  by  a  young  man  who  worked  at  the  Columbia  Hotel, 
and  who  also  attended  respondent's  fires  at  the  house.  He  was  the 
only  person  who  saw  them  in  the  house  during  the  time  they  were 
there  together.  Respondent  gave  orders  for  liquor  by  telephone. 
On  Monday  afternoon,  about  one  o'clock,  the  young  man  went  to  the 
house  to  see  if  anything  was  wanted.  At  this  time  he  heard  respondent 
say  they  must  fix  up  the  rooms,  and  the  woman  must  not  be  found 
there  by  his  wife,  who  was  likely  to  return  at  any  time.  During  this 
visit  to  the  house  the  woman  sent  the  young  man  to  a  drug  store  to 
purchase,  with  money  she  gave  him,  camphor  and  morphine  tablets. 
He  procured  both  articles.  There  were  six  grains  of  morphine  in  quar- 
ter-grain tablets.  She  concealed  the  morphine  from  respondent's 
notice,  and  was  discovered  putting  something  into  her  mouth  by  him 
and  the  young  man  as  they  were  retui^ning  from  the  other  room  after 
taking  a  drink  of  beer.  She  in  fact  was  taking  morphine.  Respondent 
struck  the  box  from  her  hand.  Some  of  the  tablets  fell  on  the  floor, 
and  of  these,  respondent  crushed  several  with  his  foot.     She  picked 


66  PEOPLE   V.    BEAKDSLEY.  [CHAP.    II. 

up  and  swallowed  two  of  them,  and  the  young  man  put  two  of  them 
in  the  spittoon.  Altogether  it  is  probable  she  took  from  three  to 
four  grains  of  morphine.  The  young  man  went  away  soon  after  this. 
Respondent  called  him  by  telephone  about  an  hour  later,  and  after 
he  came  to  the  house  requested  him  to  take  the  woman  into  the  room 
in  the  basement  which  was  occupied  by  a  Mr.  Skoba.  She  was  in  a 
stupor  and  did  not  rouse  when  spoken  to.  Respondent  was  too  in- 
toxicated to  be  of  any  assistance  and  the  young  man  proceeded  to  take 
her  downstairs.  While  doing  this  Skoba  arrived,  and  together  they 
put  her  in  his  room  on  the  bed.  Respondent  requested  Skoba  to 
look  after  her,  and  let  her  out  the  back  way  when  she  waked  up. 
Between  nine  and  ten  o'clock  in  the  evening  Skoba  became  alarmed  at 
her  condition.  He  at  once  called  the  city  marshal  and  a  doctor.  An 
examination  by  them  disclosed  that  she  was  dead. 

Many  errors  are  assigned  by  respondent,  who  asks  to  have  his  con- 
viction set  aside.  The  principal  assignments  of  error  are  based  upon 
the  charge  of  the  court,  and  refusal  to  give  certain  requests  to  charge, 
and  are  upon  the  theory  that  under  the  undisputed  e\ddence  in  the 
case,  as  claimed  by  the  people  and  detailed  by  the  people's  witnesses, 
the  respondent  should  have  been  acquitted  and  discharged.  In  the 
brief  of  the  prosecutor  his  position  is  stated  as  follows: 

"  It  is  the  theory  of  the  prosecution  that  the  facts  and  circumstances 
attending  the  death  of  Blanche  Burns  in  the  house  of  respondent  were 
such  as  to  lay  upon  him  a  duty  to  care  for  her,  and  the  duty  to  take 
steps  for  her  protection,  the  failure  to  take  which,  was  sufficient  to 
constitute  such  an  omission  as  would  render  him  legally  responsible 
for  her  death.  .  .  .  There  is  no  claim  on  the  part  of  the  people  that 
the  respondent  ...  was  in  any  way  an  active  agent  in  bringing  about 
the  death  of  Blanche  Burns,  but  simply  that  he  owed  her  a  duty  which 
he  failed  to  perform,  and  that  in  consequence  of  such  failure  on  his 
part  she  came  to  her  death." 

Upon  this  theory  a  con\'iction  was  asked  and  secured. 

The  law  recognizes  that  under  some  circumstances  the  omission 
of  a  duty  owed  by  one  individual  to  another,  where  such  omission 
results  in  the  death  of  the  one  to  whom  the  duty  is  owing,  will  make 
the  other  chargeable  with  manslaughter.  21  Cyc.  p.  770  et  seq., 
and  cases  cited.  This  rule  of  law  is  always  based  upon  the  proposi- 
tion that  the  duty  neglected  must  be  a  legal  duty,  and  not  a  mere 
moral  obligation.  It  must  be  a  duty  imposed  by  law  or  by  contract, 
and  the  omission  to  perform  the  duty  must  be  the  immediate  and  direct 
cause  of  death.  1  Bishop  on  Criminal  Law  (6th  Ed.),  §  217;  2  Bishop 
on  Criminal  Law  (6th  Ed.),  §  695;  21  Am.  &  Eng.  Enc.  Law  (2d  Ed.), 
p.  99;  21  Cyc.  p.  770  et  seq.;  State  v.  Noakes,  70  Vt.  247;  2  Wharton 
on  Criminal  Law  (7th  Ed.),  §  1011;  Clark  &  Marshall  on  Crimes  (2d 
Ed.),  p.  379  (e),  and  cases  cited. 


SECT.    II.]  PEOPLE    V.    BEARDSLEY.  67 

Although  the  literature  upon  the  subject  is  quite  meagre  and  the 
cases  few,  nevertheless,  the  authorities  are  in  harmony  as  to  the  rela- 
tionship which  must  exist  between  the  parties  to  create  the  duty, 
the  omission  of  which  establishes  legal  responsibility.  One  authority 
has  briefly  and  correctly  stated  the  rule,  which  the  prosecution  claims- 
should  be  applied  to  the  case  at  bar,  as  follows: 

"  If  a  person  who  sustains  to  another  the  legal  relation  of  protector, 
as  husband  to  wife,  parent  to  child,  master  to  seaman,  etc.,  knowing 
such  person  to  be  in  peril  of  life,  willfully  or  negligently  fails  to  make 
such  reasonable  and  proper  efforts  to  rescue  him  as  he  might  have 
done  without  jeopardizing  his  own  life  or  the  lives  of  others,  he  is  guilty 
of  manslaughter  at  least,  if  by  reason  of  his  omission  of  duty  the  de- 
pendent person  dies. 

"So  one  who  from  domestic  relationship,  public  duty,  voluntary 
choice,  or  otherwise,  has  the  custody  and  care  of  a  human  being,  help- 
less either  from  imprisonment,  infancy,  sickness,  age,  imbecility,  or 
other  incapacity  of  mind  or  body,  is  bound  to  execute  the  charge  with 
proper  diligence  and  will  be  held  guilty  of  manslaughter,  if  by  cul- 
pable negligence  he  lets  the  helpless  creature  die."  21  Am.  &  Eng. 
Enc.  Law  (2d  Ed.),  p.  197,  notes  and  cases  cited. 

The  following  brief  digest  of  cases  gives  the  result  of  our  examina- 
tion of  American  and  English  authorities,  where  the  doctrine  of  crim- 
inal liability  was  involved  when  death  resulted  from  an  omission  to 
perform  a  claimed  duty.  We  discuss  no  cases  where  statutory  provi- 
sions are  involved. 

In  Territory  v.  Manton,  8  Mont.  95,  a  husband  was  convicted  of 
manslaughter  for  leaving  his  intoxicated  wife  one  winter's  night  lying 
in  the  snow,  from  which  exposure  she  died.  The  conviction  was 
sustained  on  the  ground  that  a  legal  duty  rested  upon  him  to  care  for 
and  protect  his  wife,  and  that  his  neglect  to  perform  that  duty,  result- 
ing in  her  death,  he  was  properly  con\icted. 

State  V.  Smith,  65  Me.  257,  is  a  similar  case.  A  husband  neglected 
to  pro\'ide  clothing  and  shelter  for  his  insane  wife.  He  left  her  in  a 
bare  room  without  fire  during  severe  winter  weather.  Her  death 
resulted.  The  charge  in  the  indictment  is  predicated  upon  a  known 
legal  duty  of  the  husband  to  furnish  his  wife  with  suitable  protection. 

In  State  v.  Behm,  72  Iowa,  533,  the  con\-iction  of  a  mother  of  man- 
slaughter for  exposing  her  infant  child  without  protection,  was  affirmed 
upon  the  same  ground.  See,  also,  Gibson  v.  Commonwealth,  106  Ky. 
360. 

State  v.  Noakes,  supra,  was  a  prosecution  and  con\'iction  of  a  hus- 
band and  wife  for  manslaughter.  A  child  of  a  maid  servant  was  born 
under  their  roof.  They  were  chargea  with  neglecting  to  furnish  it 
with  proper  care.  In  addition  to  announcing  the  principle  in  support 
of  which  the  case  is  already  cited,  the  court  said: 


68  PEOPLE   V.   BEARDSLEY.  [CHAP.   II. 

"To  create  a  criminal  liability  for  neglect  by  nonfeasance,  the  neg- 
lect must  also  be  of  a  personal,  legal  duty,  the  natural  and  ordinary 
consecLuences  of  neglecting  which  would  be  dangerous  to  life." 

In  reversing  the  case  for  error  in  the  charge  —  not  necessary  to  here 
set  forth  —  the  court  expressly  stated  that  it  did  not  concede  that 
respondents  were  under  a  legal  duty  to  care  for  this  child  because  it 
was  permitted  to  be  born  under  their  roof,  and  declined  to  pass  upon 
that  question. 

In  a  Federal  case  tried  in  California  before  Mr.  Justice  Field  of  the 
United  States  Supreme  Court,  where  the  master  of  a  vessel  was  charged 
with  murder  in  omitting  any  effort  to  rescue  a  sailor  who  had  fallen 
overboard,  the  learned  Justice  in  charging  the  jury  said: 

"  There  may  be  in  the  omission  to  do  a  particular  act  under  some  cir- 
cmnstances,  as  well  as  in  the  commission  of  an  act,  such  a  degree  of 
criminality  as  to  render  the  offender  liable  to  indictment  for  manslaugh- 
ter. ...  In  the  first  place  the  duty  omitted  must  be  a  plain  duty  .  .  . 
In  the  second  place  it  must  be  one  which  the  party  is  bound  to  perform 
by  law  or  contract,  and  not  one  the  performance  of  which  depends 
simply  upon  his  humanity,  or  his  sense  of  justice  or  propriety."  United 
States  V.  Knowles,  4  Sawyer  (U.  S.),  517. 

Seeking  for  a  proper  determination  of  the  case  at  bar  by  the  appli- 
cation of  the  legal  principles  involved,  we  must  eliminate  from  the  case 
all  consideration  of  mere  moral  obligation,  and  discover  whether 
respondent  was  under  a  legal  duty  towards  Blanche  Burns  at  the 
time  of  her  death,  knowing  her  to  be  in  peril  of  her  life,  which  required 
him  to  make  all  reasonable  and  proper  effort  to  save  her;  the  omission 
to  perform  which  duty  would  make  him  responsible  for  her  death. 
This  is  the  important  and  determining  question  in  this  case.  If  we 
hold  that  such  legal  duty  rested  upon  respondent  it  must  arise  by  impli- 
cation from  the  facts  and  circumstances  already  recited.  The  record 
in  this  case  discloses  that  the  deceased  was  a  woman  past  30  years  of 
age.  She  had  been  twice  married.  She  was  accustomed  to  \'isiting 
saloons  and  to  the  use  of  intoxicants.  She  prexdously  had  made  assigna- 
tions with  this  man  in  Detroit  at  least  twice.  There  is  no  e\adence 
or  claim  from  this  record  that  any  duress,  fraud,  or  deceit  had  been 
practiced  upon  her.  On  the  contrary  it  appears  that  she  went  upon 
this  carouse  with  respondent  voluntarily  and  so  continued  to  remain 
with  him.  Her  entire  conduct  indicates  that  she  had  ample  experience 
in  such  affairs. 

It  is  urged  by  the  prosecutor  that  the  respondent  "stood  towards 
tliis  woman  for  the  time  being  in  the  place  of  her  natural  guardian  and 
protector,  and  as  such  owed  her  a  clear  legal  duty  which  he  completely 
failed  to  perform."  The  cases  cited  and  digested  establish  that  no  such 
legal  duty  is  created  based  upon  a  mere  moral  obligation.  The  fact 
that  this  woman  was  in  his  house  created  no  such  legal  duty  as  exists 


SECT.    III.]  SOWLES   V.   MOORE,  69 

in  law  and  is  due  from  a  husband  towards  his  wife,  as  seems  to  be  in- 
timated by  the  prosecutor's  brief.  Such  an  inference  would  be  very 
repugnant  to  our  moral  sense.  Respondent  had  assumed  either  in  fact 
or  by  implication  no  care  or  control  over  his  companion.  Had  this 
been  a  case  where  two  men  under  like  circumstances  had  voluntarily 
gone  on  a  debauch  together  and  one  had  attempted  suicide,  no  one 
would  claim  that  this  doctrine  of  legal  duty  could  be  invoked  to  hold 
the  other  criminally  responsible  for  omitting  to  make  effort  to  rescue 
his  companion.  How  can  the  fact  that  in  this  case  one  of  the  parties 
was  a  woman,  change  the  principle  of  law  applicable  to  it?  Deriving 
and  applying  the  law  in  this  case  from  the  principle  of  decided  cases, 
we  do  not  find  that  such  legal  duty  as  is  contended  for  existed  in  fact 
or  by  implication  on  the  part  of  respondent  towards  the  deceased,  the 
omission  of  which  involved  criminal  liability.  We  find  no  more  apt 
words  to  apply  to  this  case  than  those  used  by  Mr.  Justice  Field  in 
United  States  v.  Knowles,  supra. 

"In  the  absence  of  such  obligations,  it  is  undoubtedly  the  moral 
duty  of  every  person  to  extend  to  others  assistance  when  in  danger; 
.  .  .  and  if  such  efforts  should  be  omitted  by  any  one  when  they 
could  be  made  without  imperiling  his  own  life,  he  would,  by  his  conduct, 
draw  upon  himself  the  just  censure  and  reproach  of  good  men;  but  this 
is  the  only  punishment  to  which  he  would  be  subjected  by  society." 

Other  questions  discussed  in  the  briefs  need  not  be  considered.  The 
conviction  is  set  aside,  and  respondent  is  ordered  discharged. 

Montgomery,  Ostrander,  Hooker,  and  Moore,  JJ.,  concurred. 


SECTION  III. 

Causation  of  Injury. 


SOWLES  V.  MOORE. 
Supreme  Court  of  Vermont,  1893. 

[Reported  65  Vt.  322.] 

Tyler,  J.  This  was  an  action  of  trespass  on  the  case  brought 
to  recover  the  value  of  a  pair  of  horses,  which  were  drowned  in  Lake 
Champlain,  through  the  alleged  negligence  of  the  defendants  in  not 
properly  guarding  an  opening  in  the  lake  where  they  had  been  taking 
ice  near  a  line  of  public  travel. 

The  plaintiff's  evidence  tended  to  show  that  his  son  had  occasion 
to  drive  onto  the  lake  on  the  day  of  the  accident;  that  the  wind  was 
blowing  and  the  ice  was  glare;  that  in  turning  the  team  around  the 
sled  slewed  and  brought  the  pole  against  the  horses'  legs,  frightening 


I 


70  SOWLES   V.    MOORE.  [CHAP.    II. 

them;  that  they  escaped  from  the  driver  and  ran  rapidly  from  forty 
to  sixty  rods  and  into  the  opening,  which  was  twenty  to  thirty  feet 
long  by  forty  to  sixty  feet  wide,  and  hut  little  guarded. 

The  statute,  R.  L.  s.  4,  321,  does  not  prescribe  the  manner  in  which 
such  openings  shall  be  guarded.  It  imposes  a  fine  upon  persons  who, 
in  localities  where  people  are  accustomed  to  travel,  make  openings 
and  do  not  place  suitable  guards  around  them. 

The  jury  found  by  special  verdicts  that  the  opening  was  not  properly 
guarded,  and  that  the  plaintiff's  servant  was  in  the  exercise  of  due 
care  in  respect  to  the  team  and  the  management  of  it. 

The  errors  assigned  were  in  the  court's  submitting  to  the  jury  to 

find  whether  the  horses  would  not  have  run  into  the  opening  if  it  had 

been  properly  guarded,  whether  the  guards  would  have  stopped  them, 

,  considering  their  fright  and  the  speed  with  which  they  were  running, 

!  and  in  the  instructions  that  the  plaintiff  must  make  out  that  the 

horses  were  drowned  by  reason  of  the  failure  of  the  defendants  to  prop- 

j  erly  guard  the  opening;  that  if  the  guards  would  not  have  prevented  the 

I  casualty  the  plaintiff  could  not  recover,  although  he  was  in  the  exer- 

■  cise  of  due  care  and  the  defendants  were  negligent;  that  if  the  jury 

were  satisfied  by  a  fair  balance  of  e\'idence  that  the  horses  would  have 

been  turned  away  by  a  suitable  guard,  then  the  defendants'  negligence 

caused   the   damage. 

These  instructions  did  not  contain  a  new  proposition  of  law.  It 
is  a  general  rule  that  negligence  must  not  only  be  alleged  and  proved, 
but  it  must  also  be  shown  that  it  caused  the  injury  complained  of. 
When  injury  on  the  part  of  the  plaintiff  and  negligence  on  the  part 
of  the  defendant  concur,  the  plaintiff  cannot,  nevertheless,  recover,  if 
the  defendant  could  not,  by  the  exercise  of  due  care,  have  prevented 
the  accident  from  occurring.  Red.  &  Shear,  on  Neg.  s.  8.  In  cases 
that  arose  under  our  former  statute  rendering  towns  liable  for  injuries 
caused  by  defective  highways,  it  was  not  sufficient  to  prove  the  exis- 
tence of  defects.  It  must  also  have  been  shown  that  the  defects  caused 
the  injuries  alleged.    Lester  v.  Pittsford,  7  Vt.  158. 

Were  the  horses  in  such  fright  and  running  at  such  speed  that  they 
would  have  been  turned  from  their  course  by  such  guards  as  reasonably 
prudent  men  would  have  erected?  This  was  a  material  question  of 
fact  for  the  jury  to  decide  before  they  could  say  whether  or  not  the 
defendants'  negligence  in  respect  to  a  guard  was  the  cause  of  the  cas- 
ualty. Both  questions  were  involved  in  the  instruction  that  the 
plaintiff  must  make  out  "that  the  horses  were  dro^^•ned  by  reason  of 
the  failure  of  the  defendants  to  properly  guard  the  hole." 

Suppose  damages  were  claimed  of  a  town,  caused  by  an  alleged 
defective  railing  upon  a  bridge;  could  the  question  be  excluded  from 
the  consideration  of  a  jury,  upon  proper  evidence,  whether  from  the 
nature  of  the  accident  a  suitable  railing  could  have  prevented  it? 
We  think  not. 


SECT.    III.]  SOWLES   V.    MOOKE.  71 

In  Titcomb  v.  Fitchburg  R.  R.  Co.,  12  Allen  254,  the  negligence 
alleged  was  the  want  of  railings  to  the  approaches  to  a  highway  bridge 
which  the  defendant  was  bound  to  maintain  over  its  railroad  at  a  cross- 
ing. Among  other  things  the  court  instructed  the  jury  that  if  they 
were  satisfied  that  the  injury  to  the  plaintiff  would  not  have  occurred 
if  the  fence  or- railing  had  been  sufficient,  they  must  find  a  verdict  for 
her.  In  considering  this  subject  the  Supreme  Court  said:  "So  far  as 
such  a  fence  would  be  effectual  to  guard  against  injury  from  the  fright- 
ening of  a  horse  about  to  enter  upon  the  bridge,  by  the  approach  of 
a  train  of  cars  passing  under  the  bridge,  the  plaintiff  was  entitled  to 
that  protection.  Not  that  the  defendant  was  bound  to  maintain  a  bar- 
rier that  would  in  all  cases  stop  the  progress  of  a  frightened  horse 
about  to  enter  upon  the  bridge,  but  it  was  bound  to  maintain  and  keep 
in  repair  a  suitable  and  proper  fence  at  the  place ;  and  if  the  discharge 
of  this  duty  would  have  prevented  the  occurrence  of  the  present  injury, 
and  the  plaintiff  is  shown  to  have  been  without  fault  on  her  part, 
the  railroad  company  may  properly  be  charged  in  the  present  action. 
The  fact  whether  such  a  fence  would  have  prevented  the  occurrence 
of  the  injury  may  be  a  difficult  one  for  the  jury  to  find,  but  the  burden 
is  on  the  plaintiff  to  show  this,  and  if  she  can  establish  it  the  defendant 
may  be  held  liable  for  the  injuries  sustained.  The  case  of  a  horse 
being  frightened  is  one  of  the  cases  of  casualty  which  may  and  often 
does  occur,  and  is  entirely  consistent  with  a  reasonable  degree  of 
care  and  prudence  on  the  part  of  the  traveler.  Such  traveler  has  a  right 
in  case  of  such  occurrence  to  the  protection  which  such  a  fence  as  the 
law  requires  the  railroad  company  to  maintain  would  have  given. 
If  such  a  fence  would  have  been  unavailing,  and  the  injury  would  still 
have  occurred,  the  traveler  cannot  say  his  injury  was  occasioned  by 
any  neglect  of  the  railroad  company,  and  he  must  bear  the  loss;  but 
if  otherwise,  the  liability  attaches  to  the  party  bound  to  maintain  the 
fence  as  an  appendage  to  the  bridge." 

In  Wilson  v.  Atlanta,  60  Ga.  473,  it  was  alleged  that  an  injury  was 
caused  by  the  defendant's  negligence  in  not  pro\ading  a  railing  upon 
a  street.  An  instruction  was  held  proper,  that  the  questions,  whether 
or  not  there  was  negligence  in  not  putting  up  the  railing,  and  whether 
such  negligence  caused  the  injury  to  the  plaintiff,  might  be  tested  by 
the  inquiry  whether  the  plaintiff  would  not  have  been  injured  even  if 
the  railing  had  been  constructed. 

In  Ilfrey  v.  Sabine,  etc.,  R.  R.  Co.,  76  Tex.  63,  the  plaintiff  sought 
to  charge  the  defendant  with  liability  by  reason  of  its  maintaining 
an  embankment,  which,  as  alleged,  caused  the  destruction  of  the  plain- 
tiff's house  by  water.  It  was  held  competent  for  the  trial  court  to 
consider  evidence  tending  to  show  that  the  house  would  have  been 
swept  away  by  the  storm,  regardless  of  the  embankment,  to  find  that 
fact  from  a  preponderance  of  the  evidence,  and  that  the  embankment 
was  not  the  proximate  cause  of  the  destruction. 


72  GRAVES   V.   JOHNSON.  [CHAP.    II. 

In  Bellefontaine,  etc.,  R.  R.  Co.  v.  Bailey,  11  Ohio  St.  333,  it  was 
alleged  that  the  defendant  negligently  ran  its  train  so  as  to  kill  the 
plaintiff's  horses.  It  was  held  error  for  the  court  to  refuse  an  in- 
struction to  the  jury,  that  though  the  defendant  was  negligent,  the 
plaintiff  must  fail  in  his  action  if  the  jury  believed  from  the  evidence 
that  due  care,  had  it  been  used,  would  not  have  prevented  the  injury. 

A  corresponding  proposition  was  contained  in  Judge  Steele's  charge 
in  Walker  and  wife  v.  Westfield,  39  Vt.  246,  which  was  construed  by 
this  court  to  mean  that  though  the  plaintiffs  were  not  in  the  exercise 
of  due  care,  if  "such  want  of  care  did  not  contribute  to  the  accident, 
then  it  is  of  no  consequence  in  the  case,  and  will  not  prevent  a  recovery." 

We  find  the  instructions  fully  sustained  both  by  reason  and  author- 
ity. 

The  request  to  charge  in  respect  to  "  the  known  instincts  of  the  horse" 
did  not  embody  any  legal  proposition.  All  that  the  court  could  prop- 
erly say  on  this  subject  was  said  in  reply  to  an  inquiry  by  the  jury. 

Judgment  affirmed.^ 


GRAVES  V.  JOHNSON. 
Supreme  Judicial  Court  of  Massachusetts,  1901. 

[Reported  179  Mass.  53.] 

Holmes,  C.  J.     This  is  the  second  time  that  this  case  comes  before 
this  court.     156  Mass.  211.     It  is  a  suit  for  the  price  of  intoxicating 
liquors  sold  here.    At  the  first  trial  it  was  found  that  they  were  sold 
1     wdth  a  view  to  their  being  resold  by  the  defendant  in  Maine  against 
the  laws  of  that  State;  and  on  that  state  of  facts  it  was  held  that  the 
'^  ^  action  would  not  lie.    At  the  second  trial  it  was  found  that  the  plain- 

tiffs' agent  supposed,  rightly,  that  the  defendant  intended  to  resell 
*^'  the  liquors  in  Maine  unlawfully,  but  that  the  plaintiffs  and  their  agent 
were  and  were  known  by  the  defendant  to  be  indifferent  to  what  he 
did  with  the  goods,  and  to  have  no  other  motive  or  purpose  than  to 
sell  them  in  Massachusetts  in  the  usual  course  of  business.  Seemingly 
the  plaintiffs  did  not  act  in  aid  of  the  defendant's  intent  beyond  selling 
him  the  goods.  The  judge  refused  to  rule  that  the  plaintiffs'  knowledge 
of  the  defendant's  intent  would  prevent  their  recovery,  and  the  case 
is  here  again  on  exceptions. 

The  principles  involved  are  stated  and  some  of  the  cases  are  col- 
lected in  the  former  decision.  All  that  it  is  necessary  for  us  to  say 
now  is  that  in  our  opinion  a  sale  otherwise  lawful  is  not  connected  with 
subsequent  unlawful  conduct  by  the  mere  fact  that  the  seller  correctly 
divines  the  buyer's  unlawful  intent,  closely  enough  to  make  the  sale 
unlawftd.     It  will  be  observed  that  the  finding  puts  the  plaintiffs' 

1  Ace.  Brash  v.  St.  Louis,  161  Mo.  433;  Laidlaw  v.  Sage,  158  N.  Y.  73;  Helbling 
V.  Cemetery  Co.,  201  Va.  171. 


SECT.  HI.]  REGINA  V.   FRETWELL.  73 

knowledge  of  the  defendant's  intent  no  higher  than  an  uncommuni- 
cated  inference  as  to  what  the  defendant  was  Hkely  to  do.  Of  course 
the  defendant  was  free  to  change  his  mind,  and  there  was  no  commun- 
icated desire  of  the  plaintiffs  to  cooperate  with  the  defendant's  present 
intent,  such  as  was  supposed  in  the  former  decision,  but  on  the  con- 
trary an  understood  indifference  to  everything  beyond  an  ordinary 
sale  in  Massachusetts.  It  may  be  that,  as  in  the  case  of  attempts, 
(Commonwealth  v.  Peaslee,  177  Mass.  267;  Commonwealth  v.  Kennedy, 
170  Mass.  18,  22,)  the  line  of  proximity  will  vary  somewhat  according 
to  the  gravity  of  the  evil  apprehended,  Steele  v.  Curie,  4  Dana,  381, 
385-388;  Hanauer  v.  Doane,  12  Wall.  342,  346;  Bickel  v.  Sheets,  24 
Ind.  1,  4,  and  in  different  courts  with  regard  to  the  same  or  similar 
matters.  Compare  Hubbard  v.  Moore,  24  La.  An.  591;  Michael  v. 
Bacon,  49  Mo.  474,  with  Pearce  v.  Brooks,  L.  R.  1  Ex.  213.  But  the 
decisions  tend  more  and  more  to  agree  that  the  connection  with  the 
unlawful  act  in  cases  like  the  present  is  too  remote.  M'Intyre  v. 
Parks,  3  Met.  207;  Sortwell  v.  Hughes,  1  Curt.  C.  C.  244,  247;  Green 
v.  Collins,  3  CUff.  494;  Hill  v.  Spear,  50  N.  H.  253;  Tracy  v.  Talmage, 
4  Kernan,  162;  Distilling  Co.  v.  Nutt,  34  Kans.  724,  729;  Webber 
V.  Donnelly,  33  Mich.  469;  Tuttle  v.  Holland,  43  Vt.  542;  Braunn 
V.  Keally,  "146  Penn.  St.  519,  524;  Wallace  v.  Lark.  12  So.  Car.  576, 
578;  Rose  v.  Mitchell,  6  Col.  102;  Jameson  v.  Gregory,  4  Met.  (Ky. 
363,  370;  Bickel  v.  Sheets,  Hubbard  v.  Moore,  and  Michael  v.  Bacon), 
ubi  supra. 

Although  a  different  rule  was  assumed  in  Suit  v.  Woodhall,  113  Mass. 
391,  it  will  be  seen  that  it  equally  was  assumed  by  the  instructions 
given  at  the  trial,  and  that  the  exceptions  and  the  point  decided  in 
that  case  concerned  only  the  imputation  to  the  plaintiffs  of  their 
agent's  knowledge.  M'Intyre  v.  Parks  never  has  been  overruled. 
Dater  v.  Earl,  3  Gray,  482;  Webster  v.  Munger,  8  Gray,  584,  587; 
Adams  v.  Coulliard,  102  Mass.  167,  172;  MiUiken  v.  Pratt,  125  Mass. 
374,  376. 

Exceptions  to  the  admission  of  letters  of  the  plaintiffs'  agent  to 
them  for  the  purpose  of  showing  what  they  knew  are  not  argued. 

Exceptions  overruled. 


REGINA  V.  FRETWELL. 

Crown  Case  Reserved.     1862. 

[Reported  Leigh  ^-  Cave,  161.] 


Erle,  C.  J.  The  prisoner  in  this  case  was  convicted  of  murder  ;  and 
the  question  for  us  is  whether,  upon  the  facts  stated,  he  was  properly 
convicted.     The  deceased,  Elizabeth  Bradley,  was  pregnant,  and,  for 


74  KEGINA   V.   FRETWELL.  [CHAP.   II. 

the  purpose  of  producing  abortion,  took  a  dose  of  corrosive  sublimate, 
which  had  been  procured  for  her  by  the  prisoner  with  a  full  knowledge 
of  tlie  purpose  to  which  it  was  to  be  applied.  In  procuring  the  poison 
the  prisoner  had  acted  at  the  instigation  of  the  deceased,  and  under 
the  influence  of  threats  by  her  of  self-destruction  if  the  means  of  pro- 
curing abortion  were  not  supplied  to  lier.  Then  the  case  sets  out  the 
reasons  which  caused  the  woman  to  be  so  desirous  of  preventing  her 
state  becoming  known.  The  jur}'  expressly  negatived  the  fact  of  the 
prisoner  having  administered  the  poison  to  the  deceased,  or  caused  it 
to  be  taken  by  her ;  but  they  found  that  he  had  delivered  it  to  her  with 
a  knowledge  of  the  purpose  to  which  she  intended  to  apply  it,  and  that 
he  was  therefore  accessory  before  the  fact  to  her  taking  poison  for  the 
purpose  of  procuring  abortion.  Chief  Justice  Cockburn  thereupon, 
on  the  authority  of  Russell's  Case,  directed  the  jury  to  return  a  verdict 
of  wilful  murder  against  the  prisoner,  and  reserved  the  case  for  the 
consideration  of  this  Court.  Now,  upon  the  facts  stated,  the  present 
case  appears  to  me  to  differ  materially  from  that  of  Rex  v.  Russell. 
There  the  prisoner,  finding  the  woman  to  be  pregnant,  of  his  own 
motion  procured  arsenic,  gave  it  to  the  woman,  and  instigated  and  per- 
suaded her  to  take  it,  for  the  purpose  of  procuring  a  miscarriage ;  and 
the  woman  took  it  knowingly,  with  the  like  intent  of  procuring  a  mis- 
carriage, and  thereby  caused  her  own  death.  The  Judges  held  that  it 
was  a  misdemeanor  in  her  to  take  arsenic  for  the  purpose  of  procuring 
abortion  ;  that,  having  thereby  caused  her  own  death,  she  was  felo  de 
se  :  and  that  the  prisoner  was  an  accessory  before  the  fact  to  the 
murder.  Now,  there  appears  to  me  to  be  a  ver}'  marked  distinction 
between  the  conduct  of  the  prisoner,  Fretwell,  in  this  case,  and  the  con- 
duct of  the  prisoner.  Russell,  in  the  case  I  have  already  referred  to. 
In  the  latter  case,  Russell  instigated  and  persuaded  the  woman  to  take 
the  arsenic.  In  the  present  case,  the  prisoner  was  unwilling  that  the 
woman  should  take  the  poison.  He  procured  it  for  her  at  her  instiga- 
tion, and  under  a  threat  by  her  of  self-destruction.  He  did  not  admin- 
ister it  to  her,  or  cause  her  to  take  it,  and  the  facts  of  the  case  are 
quite  consistent  with  the  supposition  that  he  hoped  and  expected  that 
she  would  change  her  mind  and  would  not  resort  to  it.  Then,  the  cases 
being  distinguishable,  it  is  unnecessarj'  to  decide  whether  in  this  case 
the  woman  was  felo  de  se.  I  am  the  more  fortified  in  my  opinion  by 
looking  at  the  late  statute  for  consolidating  and  amending  the  law 
relating  to  offences  against  the  person.  By  sect.  58  of  that  statute, 
any  woman  administering  poison  to  herself  with  intent  to  procure  mis- 
carriage, and  any  person  administering  it  to  her  or  causing  it  to  be 
taken  by  her  with  the  like  intent,  is  guilty  of  felony.  By  sect.  59,  any 
one  supplying  or  procuring  any  poison,  knowing  that  the  same  is 
intended  to  be  used  with  intent  to  procure  miscarriage,  is  guilt}'  of  a 
misdemeanor.  The  crime,  therefore,  of  procuring  or  supplying  the 
poison  is  one  of  a  totally  different  character  from  that  of  administering 
it,  or  causing  it  to  be  taken.  My  opinion  is,  that  the  prisoner  was  not 
guilty  of  murder,  and  that  the  conviction  must  be  quashed. 


SECT.    III.]  LIVINGSTON   V.    COMMONWEALTH.  75 

Martin,  B.  I  am  of  the  same  opinion.  The  acts  of  the  prisoner 
were  too  remote  from  the  death  of  the  woman  to  make  him  guilty  of 
murder. 

Channell,  B.  I  am  of  the  same  opinion  with  the  Lord  Chief  Justice, 
and  for  the  reasons  which  he  has  given. 

Blackburn,  J.  I  am  of  the  same  opinion.  According  to  the  finding 
of  the  jury,  the  prisoner  neither  administered  the  poison  nor  caused  it 
to  be  taken  by  the  woman,  and  therefore  was  not  a  part}-  to  what  took 
place  in  such  a  way  as  to  make  what  he  did  amount  to  murder. 

Keating,  J.     I  am  of  the  same  opinion.  Conviction  quashed. 


LIVINGSTON  V.  COMMONWEALTH. 

Court  of  Appeals  of  Virginia.     1857. 

^Reported  14  Grattan  592.] 

At  the  October  term  1856  of  the  Circuit  court  of  the  city  of  Richmond, 
George  Livingston  was  indicted  for  the  murder  of  Elizabeth  Duesberry. 
The  indictment  was  in  the  usual  form  of  a  common  law  indictment  for 
murder,  and  contained  but  one  count.  To  this  indictment  the  prisoner 
demurred  ;  but  his  demurrer  was  overruled.  He  was  tried  at  the  same 
term,  and  found  guilty  of  murder  in  the  second  degree ;  but  on  the 
motion  of  the  prisoner,  the  court  set  aside  the  verdict  and  granted  him 
a  new  trial.  In  April  1857  the  prisoner  was  again  tried  and  found 
guilty  of  voluntary  manslaughter  ;  and  the  term  of  his  imprisonment 
was  fixed  at  one  year.  Upon  this  trial  the  clerk  charged  the  jury  in 
the  same  terms  as  on  the  first  trial.  Upon  the  verdict  the  court  ren- 
dered judgment  against  the  prisoner ;  and  he  applied  to  this  court  for 
a  wiit  of  error  ;  which  was  allowed. 

On  the  trial  a  number  of  questions  were  saved  ;  but  it  is  only  neces- 
sary to  state  those  which  were  acted  on  b}-  this  court.  It  appears  that 
the  deceased  was  the  mistress  of  the  prisoner,  and  that  he  frequently 
beat  her.  On  the  Saturday  previous  to  her  death  he  gave  her  a  beating, 
which  was  testified  to  b}-  two  of  the  inmates  of  the  house  where  she 
lived.  These  witnesses  testified  that  on  the  same  evening,  and  about 
two  hours  after  the  beating,  she  complained  of  a  violent  pain  in  her 
side.  This  testimony  the  prisoner  moved  the  court  to  exclude;  but 
the  court  overruled  the  motion ;  and  the  prisoner  excepted.  This  is 
his  first  exception. 

Dr.  Waring,  a  practising  physician  in  Richmond,  was  sent  for  to  see 
the  deceased,  and  attended  her  until  her  death  on  the  next  Thursday'. 
He  stated,  in  giving  in  his  evidence,  that  he  heard  nothing,  either  from 
the  deceased  or  the  witnesses,  of  bruises  or  pain  an^'where  except  in 
the  lower  part  of  the  abdomen,  in  the  region  of  the  bladder.  That  he 
treated  the  deceased  to  allay  inflammation  and  promote  action  on  the 
bowels-.     He  made   a  post-mortem   examination ;  and   after  detailing 


l/u^Uvi/  ^  lA    ^^   ^'v.::'-     -^■>-  (^'^  r 


vUvf 


U 


76  LIVINGSTON   V.    COMMONWEALTH.  [CHAP.    IL 

the  appearances,  said  he  saw  sufficient  cause  of  death,  without  referring 
it  to  the  beating.  The  witness  having  said,  in  answer  to  a  question  by 
the  attorney  for  the  commonwealth,  that  he  heard  the  testimony-  of  all 
the  witnesses  who  had  been  examined,  the  attorney  put  to  him  the 
following  question  :  Do  3'ou  not  think  that  the  violence  which  she  re- 
ceived by  the  beating  which  you  have  heard  described  accelerated  the 
death  of  the  deceased?  This  question  was  objected  to  b}'  the  counsel 
for  the  prisoner ;  but  the  objection  was  overruled,  and  he  excepted. 
This  is  his  second  exception.^ 

Daniel,  J.  It  seems  to  me,  however,  that  the  court  below  erred  in 
receiving  a  portion  of  the  testimony  set  out  in  the  fifth  bill  of  excep- 
tions ;  and  more  particularly  that  portion  sought  and  elicited  by  the 
ninth  question  propounded  by  the  prosecution  to  the  witness  Waring. 
I  know  of  no  authority  which  would  hold  a  party  criminall}'  responsible 
in  a  case  such  as  that  which  it  was  the  aim  and  tendency  of  this  testi- 
mony to  establish. 

It  is  true  that  if  a  man  be  sick  of  a  mortal  disease,  and  receives 
a  wound  which,  by  irritating  or  provoking  the  disease  to  operate  more 
violently,  hastens  his  death,  the  party  inflicting  the  wound  ma}'  be  held 
accountable  for  the  death.  In  such  a  case,  it  is  said,  the  deceased  has 
not  died  ex  risitatione  dei,  for  the  wound  has  hastened  the  death,  and 
the  offender  cannot  apportion  his  wrong.     1  Hale,  428. 

8o  again,  it  is  said  by  the  same  authorit}',  if  a  man  receives  a  wound 
not  mortal,  and  through  neglect  or  failure  to  use  the  proper  application, 
it  turns  to  a  gangrene  or  fever  which  causes  the  death,  then  the  wound, 
being  the  cause  of  the  gangrene  or  fever,  is  regarded  as  the  causa 
causail^  and  the  party  inflicting  the  wound  may  be  held  responsible  for 
the  death. 

On  the  other  hand,  however,  if  the  wound  be  not  mortal,  but  with 
ill  applications  the  party  dies,  and  it  clearly  appears  that  the  medicine 
and  not  the  wound  was  the  cause  of  death,  this  is  not  homicide. 

It  will  be  seen  that  tliere  is  a  marked  difference  between  the  first 
two  cases  thus  instanced  by  Lord  Hale,  and  the  case  pointed  to  by  the 
testimony  in  question.  In  neither  of  the  former  is  any  independent 
cause  interposed  between  the  wound  and  the  death.  In  the  first  of  the 
two  the  death  would  not  have  occurred  at  the  time  it  did  but  for  the 
wound.  Though  the  sick  man  was  laboring  under  a  disease,  which  if 
left  to  take  its  natural  course,  would  result  in  death  at  no  distant 
period,  3'et  the  death  in  respect  of  time  is  plainly  referable  to  the 
wound.  So,  in  the  second,  though  the  gangrene  is  the  proximate  cause 
of  the  death,  yet  the  gangrene  is  a  consequence  of  the  wound;  and  so 
the  death  is,  b}'  a  regular  course  and  natural  order,  in  the  sequence  of 
events,  traced  up  to  the  wound  as  its  originating  cause.  But  in  the 
case  sought  to  be  made  out  by  the  testimony  objected  to,  a  disease  is 

1  Only  so  much  of  tlie  case  as  relates  to  this  exception  is  given. —  Ed. 


SELJ.    III.]  STATE   V.    SCATES.  77 

supposed  to  have  supervened  between  a  blow  not  mortal  and  the  death : 
a  disease  not  caused  by  the  blow,  but  coming  by  the  visitation  of 
Providence. 

In  such  a  case,  the  exemption  of  the  party  inflicting  the  blow  from 
criminal  accountability,  is,  it  seems  to  me,  even  more  obvious  than  in 
the  third  of  the  instances  cited  from  Hale.  For  then  it  might  be  said 
the  "ill  application"  of  which  the  part\'  died  would  not  have  been 
resorted  to  but  for  the  wound  inflicted  by  the  wrong-doer ;  and  if  the 
connection  there,  between  the  wound  and  the  death,  is  too  remote  to 
be  made  the  foundation  of  criminal  responsibility,  a  fortiori^  must 
such  be  the  rule  wlien  the  disease,  but  for  the  supervention  of  which 
the  death  would  not  have  occurred,  is,  in  its  origin,  independent  of  the 
wound  or  blow,  and  whollv  out  of  the  course  of  its  consequences.  In 
such  a  state  of  things,  the  blow  and  the  death  have  no  necessary  or 
natural  connection  with  each  other  as  cause  and  effect.  The  blow  is 
neither  the  proximate  cause  of  the  death,  nor  is  it,  though  made  by  ex- 
traneous circumstances  to  accelerate  it,  linked  with  it  in  the  regular 
chain  of  causes  and  consequences.  A  new  and  wholly  independent  in- 
strumentality is  interposed  in  the  shape  of  the  disease  ;  and  in  contem- 
plation of  law,  the  death  stroke  is  inflicted  by  the  hand  of  Providence, 
and  not  b}^  the  hand  of  violence. 


STATE   V.   SCATES.  Jl^' 

Supreme  Court  of  North  Carolina.     1858. 

[Reported  5  Jones  420.] 

Dr.  Hill  saw  the  deceased  [child]  about  twenty  hours  after  it  was 
burnt.  He  dissected  the  burnt  parts,  and  found  the  injuries  very  exten- 
sive, the  arms,  back,  and  thighs  were  roasted,  —  crisped  like  a  piece  of 
leather.  He  stated  that  there  was  a  wound  in  the  forehead,  as  if  from  a 
blow  ;  he  was  fully  satisfied  the  burning  in  itself  was  fatal,  and  must 
have  produced  death,  but  he  "  doubted  as  to  the  immediate  cause  of  death 
—  thought  it  was  produced  b}'  the  blow."  He  explained  on  cross- 
examination  that  he  thought  the  burning  the  primary'  cause  of  the  death, 
but  that  it  was  probably  hastened  by  the  wound  on  the  head.^ 

The  Court  charged  the  jury  that  ...  as  to  the  cause  of  the  death,  it 
was  for  them  to  say  whether  it  had  been  produced  by  the  burning,  or 

other  means,  and  that  if  produced  by  the  burning,  they  should  be  satis-., I'P.'i/h 

fied  that  the  burning  was  the  act  of  the  prisoner;  "  and  even  should     1     ' 
they  share  in  the  doubt  expressed  by  the  doctor,  that  the  blow  had     i 
caused  its  immediate  death,  3'et  if  satisfied  that  the  burning  was  the      \ 
primarv  cause  of  the  death,  and  the  blow  only  hastened  it,  it  would  be       •■ 
their  dut}-  to  convict."  —  Defendant  again  excepted.  ^^ 

Verdict  "•  guilty."     Judgment  and  appeal  by  the  defendant. 

1  Part  of  the  case,  turning  on  the  admissibility  of  a  confession,  is  omitted.  —  Ed. 


"4^ 


78  STATE   V.    SCATES.  [CHAP.   II. 

Battle,  J.  .  .  .  Upon  the  other  point  in  the  case,  we  are  (lecidedlN'of 
opinion  that  the  prisoner  is  entitled  to  a  new  trial.  As  to  the  cause  of  the 
death  of  the  deceased,  his  Honor  charged  the  jury  that  if  the}'  "  sliould 
share  in  the  doubt  expressed  l\y  the  doctor,  tliat  the  blow  had  caused 
tbe  immediate  death,  yet,  if  satisfied  that  tlie  burning  was  the  primary 
cause  of  the  death,  and  the  blow  only  hastened  it,  it  would  be  their 
duty  to  convict.^  This  instruction  was  given  upon  the  supposition 
that  the  blow  was  inflicted  by  another  person,  and  the  proposition 
could  be  true  onl}'  when  the  testiraon}-  connected  the  acts  of  such  per- 
son with  the  prisoner,  so  as  to  make  them  botli  guilty,  and  we  at  first 
thouglit  such  was  the  proper  construction  to  be  put  upon  the  language 
used  b}-  his  Honor ;  but,  upon  reflection,  we  are  satisfied  that  a  broader 
proposition  was  laid  down,  to  wit:  that  if  the  prisoner  inflicted  a  mortal 
wound,  of  which  the  deceased  must  surely  die,  and  then  another  person, 
having  no  connection  with  him,  struck  the  child  a  blow,  which  merely 
hastened  its  death,  the  prisoner  would  still  be  guilt}-.  The  testimon}* 
presented  a  view  of  the  case  to  which  this  proposition  was  applicable, 
and  it  becomes  our  duty  to  decide  whether  it  can  be  sustained  upon 
any  recognized  principles  of  law. 

jNIurder  is  the    killing,  with    malice    prepense,    a   reasonable   being 

within  the  peace  of  the  State.     The  act  of  killing,  and  the  guilty  intent, 

must  concur  to  constitute  the  oflTence.     An  attempt,  only,  to  kill  with 

the  most  diabolical  intent,  may  be  moral,  but  cannot  be  legal,  murder. 

j    If  one  man  inflicts  a  mortal  wound,  of  which  the  victim  is  languishing, 

J^    and  then  a  second  kills  the  deceased  b}'  an  independent  act,  we  cannot 

imagine  how  the  first  can  be  said  to  have  killed  him,  without  involving 

i    tlie  absurdity  of  saj'ing  that  the  deceased  was  killed  twice.     In  such  a 

^  case,  the  two  persons  could  not  be  indicted  as  joint  murderers,  because 

there  was  no  understanding  or  connection  between  them.     It  is  certain 

that  the  second  person  could  be  convicted  of  murder,  if  he  killed  with 

malice  aforethought ;  and  to  convict  tlie  first  would  be  assuming  that  he 

had  also  killed  the  same  person  at  another  time.     Such  a  proposition 

cannot  be  sustained. 

The  prisoner  must  have  a  new  trial.  This  renders  it  unnecessary  for 
us  to  consider  the  effect  of  the  alleged  erroneous  entr\'  of  the  verdict. 

Per  Curiam.  Judgment  reversed. 

'      PL 


SECT.   III.]  PEOPLE    V.    AH    FAT.  79 


PEOPLE   V.  AH  FAT. 

Supreme  Court  of  California.     1874. 

[Reported  48  Cal.  61.] 

The  defendant  was  indicted  jointl}-  with  Ah  Wee  and  Ah  Moy  for 
the  murder  of  Ah  Quong.  There  was  testimon}-  tending  to  show  that 
the  deceased  was  hijured  not  onl\-  by  a  pistol  sliot,  but  also  by  a  blow 
given  by  a  hatchet.  The  defendant  asked  the  court  to  instruct  the  jury 
that  if  they  believed  "that  before  Ah  Qnong  the  deceased,  was  cut 
with  a  hatchet,  he  had  been  mortally  wounded  by  a  pistol  shot  not  fired 
by  the  defendant,"  then  they  should  find  him  not  guilt)'.  The  defend- 
ant also  asked  the  Court  to  instruct  that  "  if  the  jury  have  a  reasonable 
doubt  as  to  tlie  cause  of  the  death  of  the  deceased,  the  defendant  is 
entitled  to  the  benefit  of  such  doubt,  and  they  will  acquit  the  defendant 
if  his  death  was  caused  by  a  pistol  shot,  not  administered  by  defend- 
ant, nor  by  any  one  to  whose  act  he  was  onlv  an  accessory."  These 
were  instructions  thirteen  and  fourteen,  and  were  refused  by  theCourt.-*^ 

The  defendant  was  convicted  of  murder  in  the  second  degree  and 
sentenced  to  imprisonment  for  life,  and  appealed. 

NiLES,  J.  .  .  .  The  thirteenth  instruction  asked  by  the  counsel  for 
the  defendant  was  properly  refused.  The  jury  would  have'  been 
informed  substantial!}'  that  a  defendant  is  not  guilty  of  murder  in  the 
killing  of  a  person  who  has  already  been  mortalh'  wounded  by  another 
—  a  doctrine  which  cannot  be  seriously  contended  for.  Moreover, 
both  this  instruction  and  the  fourteenth,  asked  bv  the  defendant,  were 
radically  defective,  because  they  ignored  the  possible  guilt  of  the 
defendant  as  a  present  aider  and  abetter  of  the  killing."^ 

^  Only  so  much  of  the  case  as  relates  to  these  exceptions  is  given.  —  Ed. 

2  "  If  the  defendant  fired  the  first  shot  in  necessary  self-defence,  and  then  afterwards, 
when  Keruoodle  had  abandoned  the  contest,  and  was  fleeing,  he  again  fired  upon  iiini, 
inflicting  another  wound,  when  the  circumstances  were  not  such  as  to  mai^e  a  reason- 
able man  in  his  situation  believe  that  he  was  then  in  immediate  danger  of  great  bodily 
injury,  he  would  be  guilty  either  of  some  degree  of  homicide,  or  of  an  unlawful 
assault,  depending  upon  the  question  whether  or  not  the  wound  inflicted  by  the  last 
shot  either  caused,  contributed  to,  or  accelerated  his  death.  In  other  words,  if  the  last 
shot  was  not  fired  in  necessary  self-defence,  and  the  wounti  inflicted  by  it  either  caused 
his  death,  or  contributed  to  or  hastened  it,  the  defendant  would  be  guilty  of  some  de- 
gree of  homicide,  even  though  the  first  shot  was  fired  in  self-defence,  and  though,  at 
the  time  the  last  shot  was  fired,  the  deceased  was  already  so  severely  wounded  that 
his,  death  would  have  followed  in  a  very  .short  time.  On  the  other  hand,  if  the  first 
shot  was  fired  in  self-defence,  and  the  last  shot  neither  caused  his  death,  nor  contrib- 
uted to,  or  hastened  it,  then  he  could  not  properly  be  convicted  of  any  degree  of 
homicide,  but  might  be  convicted  of  an  assault.v'  Riddick,  J.,  in  Rogers  v.  State, 
60  Ark.  76.— Ed. 


S~t 


80  REGINA   V.   MORBY.  [CHAP.    II. 

EEGINA  V.  MORBY. 

Court  for  Crown  Cases  Reserved.     1882. 

[Reported  !5  Cox,  C.  C.  35.] 

Case  reserved  for  the  opinion  of  this  court  by  Sir  H.  Hawkins. 

The  prisoner  was  convicted  before  me  at  the  last  session  of  the  Cen- 
tral Criminal  Court,  of  the  manslaughter  of  his  son,  Abraham  Morby, 
a  child  under  the  age  of  fourteen,  who  lived  with  him,  and  was  in  his 
custody  at  Woolwich. 

The  prisoner  had  ample  means  and  opportunity  to  provide  adequate 
food,  clothing,  medical  aid,  and  lodging  for  his  child,  and  he  did  provide 
all  these  things,  except  medical  aid ;  this  he,  under  the  circumstances 
hereinafter  stated,  wilfully  neglected  and  omitted  to  provide,  because, 
being  one  of  the  '•  Peculiar  People,"  he  did  not  believe  in  medical  aid, 
but  trusted  in  prayer  and  anointment  alone  (see  Epistle  of  St.  James, 
c.  5,  V.  14). 

The  deceased  child,  who  was  eight  3'ears  old,  was,  on  the  27th  Dec. 
last,  known  by  the  prisoner  to  be  suffering  from  confluent  small-pox. 
Of  that  disease  it  died  on  the  8th  Jan. 

The  jury  found  that  it  was  reasonable  and  proper  that  the  prisoner 
should  have  called  in  and  provided  medical  aid  for  it,  but  that  he  wil- 
fully neglected  and  omitted  so  to  do. 

No  medical  man  saw  the  deceased  during  life  ;  but  Dr.  Sharpe,  who 
made  a  post  mortem  examination  of  the  bod}',  stated  that  death  was 
undoubtedly  due  to  small-pox;  tliat  small-pox  is  a  disease  requiring 
medical  advice  and  skill,  great  attention,  and  great  care,  and  if  not 
attended  to,  is  calculated  to  spread. 

This  question  was  put  to  Dr.  Sharpe:  "In  your  opinion,  do  you 
think  the  life  of  the  deceased  miglit  have  been  probably  prolonged 
if  medical  skill  had  been  called  in?"  to  which  he  answered  thus: 
"  Probably  ;  l)ut  I  would  rather  put  it  in  this  way  :  that  the  chances  of 
the  boy's  life  would  have  been  increased  by  having  medical  advice." 

The  prisoner's  counsel  admitted  that  lie  could  not  contend  that  the 
prisoner  was  not  guilty  of  a  breach  of  the  statutory  duty  imposed  on 
him  by  31  &  32  Vict.  c.  122,  s.  37,  but  he  submitted  that  the  death  was 
not  caused  by  that  breach  of  dut^'.  I  held  that,  if  death  was  accel- 
erated thereby,  it  would  be  sufficient.  Upon  this  the  prisoner's  counsel 
urged  that  there  was  no  proof  that  death  was  so  accelerated.  There- 
upon Dr.  Sharpe  was  recalled,  and  the  following  questions  were  put  to 
him,  to  which  he  gave  the  answers  subjoined  : 

Q.  —  In  your  judgment,  if  medical  advice  and  assistance  had 
been  called  in  at  an}-  stage  of  this  disease,  might  the  death  have 
been  averted  altogether? 

A.  —  I  can  only  answer  that  by  saying  tliat  it  mif/ht  have  been. 
Ours  is  not  a  positive  science.     It  might  have  been  averted  if  medical 


SECT.    III.]  KEGINA   V.   MOKBY.  81 

aid  had  been  called  in  at  any  earlier  stage.  I  am  unable  to  say 
whether  it  probably  would.  I  might  say  [)robably  as  to  whether  life 
might  have  been  prolonged.  I  cannot  say  that  death  would  probabl}' 
have  been  averted.  I  think  it  probable  that  life  might  have  been  pro- 
longed. I  can  only  say  probabh/  anight,  because  I  did  not  see  the  case 
while  living.  I  am  unable  to  say  that  life  tvould  probably  have  been 
prolonged,  because  I  did  not  see  the  case  during  life.  Had  I  done  so, 
I  might  have  been  able  to  answer  the  question. 

The  prisoner's  counsel  still  insisted  there  was  no  proof  that  death 
was  caused  or  accelerated  by  the  prisoner's  breach  of  duty. 

I  thought  it  best  to  submit  the  evidence  to  the  jur}',  and  to  reserve 
the  point  if  necessar}'. 

I  accordingly  asked  the  jury  whether  the  life  of  the  child  would,  in 
their  judgment,  have  been  prolonged  if  medical  aid  had  been  called  in 
when  the  prisoner  became  aware  of  the  fact  that  deceased  was  suffering 
from  small-pox? 

To  this  question  they  answered  that  it  would. 

I  then  told  them  that  if  they  so  found,  and  that  the  death  of  the 
child,  though  it  could  not  be  certainly  averted  altogether,  was  never- 
theless accelerated  by  the  wilful  neglect  of  the  prisoner  to  provide 
such  medical  aid  when  it  was  reasonable  and  proper  and  his  duty  to 
,  provide  it — he  having  the  means  and  opportunity  to  do  so  —  he  was 
guilt}*  of  manslaughter. 

On  this  direction  tlie  jury  found  him  guilty. 

I  reserve  for  the  opinion  of  the  Court  of  Criminal  Appeal  these 
two  questions : 

1st.  Whether  there  was  any  evidence  that  the  life  of  the  child  would 
have  been  prolonged  for  any  period  of  time,  however  short,  if  the 
prisoner  had  called  in  and  provided  medical  aid  —  or  in  other  words, 
that  death  was  accelerated  by  his  breach  of  dut}^? 

If  tliere  was,  I  am  satisfied  with  the  finding  of  the  jury. 

2nd.  Whether,  assuming  the  prisoner  to  have  accelerated  the  death 

of  the  child  b}'  his  breach  of  dutj-  in  wilf  uUj'  neglecting  to  provide  for 

it  medical  aid  as  aforesaid,  he  was  properly  convicted  of  manslaughter? 

If  either  of  these  questions  is  answered  in  the  negative  the  conviction 

is  to  be  quashed. 

If  botli  are  answered  in  the  affirmative  it  is  to  be  affirmed. 
The  case  not  l)eing  one  demanding  punishment,  I  have  released  the 
prisoner  on  his  own  recognisanzes  to  appear  for  judgment  if  he  should 
be  required  to  do  so. 

See  31  &  32  Vict.  c.  122,  s.  37  ;  Reg.  v.  Downes,  L.  Rep.  12  Q.  B. 
Div.  25,  s.  c.  45  L.  J. ;  13  Cox's  C.  C.  111. 

March  20,  1882.  H.  Hawkins. 

D.  Kingsford  for  the  prisoner.  —  There  was  no  evidence  in  support 

of  the  charge  of  manslaughter  which  the  judge  ought  to  have  left  to 

the  jury,  and  he  ought  to  have  directed  ah  acquittal.     It  was  necessary 

for  the  prosecution  to  show  that  the  non-supply  of  medical  assistance 


82  EEGINA   V.   MORBY.  [CHAP.    II. 

by  the  prisoner  was  the  direct  and  proximate  cause  of  the  death  of 
the  boy  or  of  the  acceleration  of  his  death.  The  case  of  Rex  v.  Stockdale 
(2  Lewin  C.  C.  220)  was  then  cited. 

Poland  {Mead  with  liim)  for  the  prosecution. 

Lord  Coleridge,  C.  J.  — We  are  all  clearl}-  of  opinion  that  the  con- 
viction cannot  be  supported.  The  jury  may  have  thought  that,  as 
there  had  been  a  neglect  of  his  duty  b}-  the  parent,  it  was  right  to 
mark  their  sense  of  it  b}'  their  verdict.  Nothing  could  be  more  cautious 
than  the  answers  given  by  the  medical  witness  to  the  questions  put 
to  him.  It  was  not  enough  to  sustain  the  charge  of  manslaughter 
to  show  that  the  parent  had  neglected  to  use  all  reasonable  means 
of  saving  the  life  of  his  child;  it  was  necessar}'  to  show  that  what 
the  parent  neglected  to  do  had  the  effect  of  shortening  the  child's 
life.  The  utmost  that  the  doctor  would  say,  giving  his  evidence  under 
a  strong  responsibility,  in  answer  to  the  question,  "  In  your  judgment, 
if  medical  advice  and  assistance  had  been  called  in  at  s.x\y  stage  of  this 
disease,  might  the  death  have  been  averted  altogether?"  was,  "  I  can- 
not say  that  death  would  probably  have  been  averted.  I  think  it 
probable  that  life  might  have  been  prolonged.  I  can  only  say  prob- 
abl\-  might,  because  I  did  not  see  the  case  during  life ;  had  I  done  so 
I  might  have  been  able  to  answer  the  question."  That  evidence  is 
far  too  vague  to  allow  this  conviction  to  stand  when  all  that  the  skilled 
witness  could  say  was  that  probably  the  life  of  the  boy  might  have 
been  prolonged  if  medical  assistance  had  been  called  in. 

Grove,  J.  —  I  am  of  the  same  opinion.  The  jurv,  by  their  verdict, 
sa}'  what  the  medical  witness  expressly  declined  to  sa}-,  that  is,  that 
the  boy's  life  would  have  been  prolonged  by  calling  in  medical  assist- 
ance. The  prosecution  was  bound  to  give  affirmative  evidence  that 
the  death  was  caused  by  the  neglect  of  the  prisoner  to  call  in  medical 
assistance. 

Stephen,  J.  —  I  am  of  the  same  opinion.  This  matter  might  be 
made  absolutely  plain  if  the  evidence  were  to  go  a  little  more  into 
detail.  Suppose  the  medical  witness  had  been  asked  whether  the  ad- 
ministration of  such-and-such  medicines  which  had  not  been  adminis- 
tered would  have  been  of  service  in  prolonging  the  boy's  life,  and  he 
had  answered  that  "  probabl}'  they  might  have  been,  but  that  he  could 
not  undertake  to  sa}-  so,  not  having  seen  the  case."  Would  any  one 
sa}'  that  the  neglect  to  administer  such  medicines  would  make  the 
father  guilty  of  manslaughter?  It  is  probable  that  the  prisoner  was 
guilty  of  an  offence  under  the  statute  in  not  providing  medical  assist- 
ance, but  it  does  not  follow  that  he  was  guilt}'  of  manslaughter, 
which  requires  it  to  be  shown  that  the  result  of  the  neglect  was  to 
cause  death,  whereas  here  it  was  left  in  doubt;  and  I  have  alwaj'S 
understood  that  to  warrant  a  conviction  the  minds  of  the  jury  must 
be  free  from  any  reasonable  doubt. 

Matthew  and  Cave,  JJ.,  concurred. 

Conviction  quashed. 


SECT.    III.]      CASTELL,   WIDOW,   V.   BAMBRIDGE   AND   CORBET.  83 


CASTELL,  WIDOW,  v.  BAMBRIDGE  AND  CORBET.      — 
Guildhall.     17.30. 

[Reported  2  Strancje,  854.]  ^     y- 

The  defendant  Bambridge,  having  been  prosecuted  on  the  report  of 
the  committee  of  the  House  of  Commons  for  the  murder  of  the  plain- 
tiflfs  husband,  who  was  a  prisoner  in  the  Fleet  under  the  custody  of 
Bambridge  the  warden,  and  having  on  the  trial  been  honoi'abl}'  acquit- 
ted upon  the  prosecutor's  own  evidence,  was  followed  with  an  appeal, 
to  which  Corbet,  who  on  the  cross-examination  appeared  to  be  a  ma- 
terial witness  for  Bambridge,  was  now  also  made  an  appellee.^ 

Upon  this  the  appeal  was  arraigned,  setting  forth  that  the  appellant's 
husband  was  a  prisoner  in  the  Fleet  under  the  custod}'  of  Bambridge 
the  warden,  who  made  an  assault  upon  him,  and  contrary  to  liis  will 
carried  him  to  the  house  of  Corbet,  a  victualling  house  within  the  Fleetj 
and  there  imprisoned  him,  where  one  White  then  lay  ill  of  the  small- 
pox, which  Castell  had  never  had  ;  that  the  appdlees  had  notice  of  this, 
and  were  desired  to  sutler  him  to  remove  to  another  place  in  the  prison, 
which  they  refused,  and  afterwards  Castell  fell  ill  of  that  distemper, 
and  died  in  Corbet's  house,  whereb}',  the  count  concludes,  the  appellees 
were  guilty  of  his  murder. 

Without  staying  for  a  copy  of  the  declaration  the  appellees  instanter 
pleaded  not  guilty,  and  their  plea  was  rehearsed  in  French,  and  issue 
joined. 

Upon  the  26th  of  January  the  trial  came  on  at  Guildhall  before  the 
Chief  Justice  [Raymond].  After  a  long  examination  the  Chief  Justice 
directed  the  jurj'  that  if  they  believed'Castell  was  carried  to  Corbet's 
against  his  consent,  and  «^as  there  so  detained,  Ihat  Bambridge  and 
Corbet  knew  the  small-pox  was  there^'^that  Castell  had  not  had  it, "but 
feared  it,  and  ''desired  to  be  removed,  or  not  be  carried  there  at  all, 
S that  he  caught  the  small-pox  of  White,  and  died  thereof,  —  then  the 
appellees  would  be  guilty  of  murder  ;  but  if  any  one  of  these  facts  were 
not  proved  to  the  satisfaction  of  the  jur}",  they  ought  to  be  acquitted. 
And  there  being  no  pretence  to  charge  either  of  the  appellees,  the  jury 
brought  them  hi  not  guilty.^ 

1  Part  of  the  case,  involving  (juestions  of  procedure  only,  is  omitted, 
'^  See  Rex  v.  Muggins,  2  Ld.  Raym.  1574,  2  Strange,  862.  In  this  case  Lord  Chief 
Justice  Raymond  said  :  "  There  is  no  ]iarticular  way  of  killing  another  that  is  neces- 
sary to  constitute  a  murder  ;  but  the  committing  of  murder  is  as  various  as  the  several 
wavs  of  putting  an  end  to  life.  In  the  case  of  a  prisoner  there  is  no  occasion  for  an 
actual  stroke  :  the  restraining  him  by  force,  and  killing  him  by  ill-usage,  is  enough  to 
constitute  this  offence.  All  the  authors  who  speak  of  this  species  of  murder  desctibe 
it  by  a  general  expression  per  dure  garde  de  ses  gardens."  —  Ed. 


84  REGINA    V.   TOWERS.  [CEIAP.    II. 

REGINA   u.    GREENWOOD. 
Liverpool  Assizes.     1857. 

[Reported  7  Cox  C.  C.  404.] 

The  prisoner  was  indicted  for  murder  and  rape  on  a  child  under  ten. 

It  appeared  from  the  evidence  that  the  prisoner  had  connection  with 
the  deceased,  and  that  it  was  afterwards  discovered  she  had  the  venereal 
disease. 

Fernleii  and  C.  H.  Hopwood,  for  the  prosecution. 

Cohbett^  for  tlie  prisoner. 

WiGHTMAN,  J.,  told  the  jury  that  tlie  malice  which  constitutes  mur- 
der might  be  either  express  or  implied.  There  was  no  pretence  in  this 
case  that  there  was  an}-  malice  other  than  what  might  be  implied  by 
law.     There  were  five  questions  for  them  to  consider. 

First,  had  the  prisoner  connection  with  her? 

Secondly,  did  she  die  therefrom? 

Thirdly,  had  she  the  venereal  disease? 

Fourthh-,  did  she  die  from  its  etfects? 

Fiftlily,  did  she  get  it  from  the  prisoner? 

If  they  were  of  opinion  that  the  prisoner  had  connection  with  her, 
and  she  died  from  its  effects,  then  that  act  being,  under  the  circum- 
stances of  this  case,  a  felony  in  point  of  law,  this  would,  of  itself,  be 
such  malice  as  would  justify  them  in  finding  him  guilty  of  murder. 

The  jury  retired,  and,  after  some  time,  returned  into  court  saying  that 
they  were  satisfied  that  he  had  connection,  and  that  her  death  resulted 
therefrom,  but  were  not  agreed  as  to  finding  him  guilt}'  of  murder. 

WiGHTMAN,  J.,  told  them  that,  under  these  circumstances,  it  was 
open  to  them  to  find  the  prisoner  guilty  of  manslaughter,  and  that  they 
might  ignore  the  doctrine  of  constructive  malice  if  they  thought  fit. 

The  jury  found  a  veidict  of  manslaughter,  and  the  prisoner  was 
ordered  to  be  kept  in  penal  servitude  for  life. 


REGINA   V.   TOWERS. 
'^J   ^  Carlisle  Assizes.     1874. 


^t  i\v 


[Reported  12  Cox  C.  C.  530.] 

Wilson  Towers  was  charged  with  the  manslaughter  of  John  Heth- 
erington  at  Castlesowerbv  on  the  Gth  of  September,  1873. 

The  i)risoner,  who  had  been  drinking  on  the  4th  of  August,  went 
into  a  public-house  at  New  Yeat  near  Castlesowerby,  kept  b}'  the 
mother  of  the  deceased,  and  there  saw  a  girl  called  Fanny  Glaister 
nursing  the  deceased  child,  who  was    then  only  about  four    months 


SECT.    III. 


REGINA   V.    TOWERS.  85 


and  a  half  old,  having  been  born  on  the  20th  of  March,  1873.  The 
prisoner,  who  appeared  to  have  had  some  grievance  against  Fanny 
Glaister  about  her  hitting  one  of  his  children,  immediatel}-  on  entering 
the  public-house  went  straight  up  to  where  she  was,  took  her  b}'  the 
hair  of  the  head,  and  hit  her.  She  screamed  loudly,  and  this  so 
frightened  the  infant  that  it  became  black  in  the  face  ;  and  ever  since 
that  da}'  up  to  its  death  it  had  convulsions  and  was  ailing  generally 
from  a  shock  to  the  nervous  system.  The  child  was  previously  a  very 
healthy  one.^ 

Henry  submitted  that  there  was  no  case  to  go  to  the  jury,  but 
Denman,  J.,  said,  that  he  should  leave  it  to  the  jury  to  say  whether 
the  death  of  the  child  was  caused  by  the  unlawful  act  of  the  prisoner, 
or  whether  it  was  not  so  indirect  as  to  be  in  the  nature  of  accident. 
This  case  was  different  from  other  cases  of  manslaughter,  for  here 
the  child  was  not  a  rational  agent,  and  it  was  so  connected  with  the 
girl  that  an  injury  to  the  girl  became  almost  in  itself  an  injury  to 
the  child. 
L  ,^  Penman,  J.,  in  summing  up,  said  it  was  a  very  unusual  case,  and 
it  was  verj"  unusual  indeed  to  find  a  case  in  which  the}  got  practically 
/  '  no  assistance  from  previousl}'  decided  cases.  There  was  no  offence 
known  to  our  law  so  various  in  its  circumstances  and  so  various  in 
the  considerations  applicable  to  it  as  that  of  manslaughter.  It  might 
be  that  in  this  case,  unusual  as  it  was,  on  the  principle  of  common  law 
manslaughter  had  been  committed  by  the  prisoner.  The  prisoner  com- 
mitted an  assault  on  the  girl,  which  is  an  unlawful  act,  and  if  that  act, 
in  their  judgment,  caused  the  death  of  the  child,  i.  e.,  that  the  child 
would  not  have  died  but  for  that  assault,  they  might  find  the  prisoner  /  -.  , 
guilty  of  manslaughter.  He  called  their  attention  to  some  considera-  L*-*  )([JJ\A-<' 
tions  that  bore  some  analogy  to  this  case.  This  was  one  of  the  new 
cases  to  which  they  had  to  apply  old  principles  of  law.  It  was  a  great 
advantage  that  it  was  to  Ue  settled  b}'  a  jury  and  not  by  a  judge.  If 
he  were  to  say,  as  a  conclusion  of  law,  that  murder  could  not  have 
been  caused  by  such  an  act  as  this,  he  might  have  been  laying  down  a 
dangerous  precedent  for  the  future  ;  for  to  commit  a  murder  a  man 
might  do  the  very  same  thing  this  man  had  done.  They  could  not 
commit  murder  upon  a  grown-up  person  by  using  language  so  strong 
or  so  violent  as  to  cause  that  person  to  die.  Therefore  mere  intimida- 
tion, causing  a  person  to  die  from  fright  by  working  \\\)ou  his  fancy, 
was  not  murder.  But  there  were  cases  in  which  intimidations  had 
been  held  to  be  murder.  If  for  instance  four  or  five  persons  were  to 
stand  round  a  man  and  so  threaten  him  and  frighten  him  as  to  make 
him  believe  that  his  life  was  in  danger,  and  he  were  to  back  awa}-  from 
them  and  tumble  over  a  precipice  to  avoid  them,  then  murder  would 
have  been  committed.  Then  did  or  did  not  this  principle  of  law  apply 
to  the  case  of  a  child  of  such  tender  years  as  the  child  in  question? 

1  The  evideuce  is  omitted. 


ik 


86 


REGINA   V.   TOWERS. 


[CtlAP.    II. 


For  the  purposes  of  the  case  he  would  assume  that  it  did  not ;  for  the 
purposes  of  to-day  he  should  assume  that  the  law  about  working  upon 
people  by  fright  did  not  apply  to  the  ease  of  a  child  of  such  tender 
years  as  this.  Then  arose  the  question,  which  would  be  for  them  to 
decide,  whether  this  death  was  directly  the  result  of  the  prisoner's  un- 
lawful act,  whether  they  thought  that  the  prisoner  raiglit  be  held  to  be 
the  actual  cause  of  the  child's  death,  or  whether  they  were  left  in  doubt 
upon  that  upon  all  the  circumstances  of  the  case.  After  referring  to 
the  supposition  that  the  convulsions  were  brought  on  owing  to  the  child 
teething  he  said  that  even  though  the  teething  might  have  had  some- 
thing to  do  with  it,  yet  if  the  man's  act  brought  on  the  convulsions,  or 
brought  them  to  a  more  dangerous  extent,  so  that  death  would  not 
have  resulted  otherwise,  then  it  would  be  manslaughter.  If,  therefore, 
the  jury  thought  that  the  act  of  the  prisoner  in  assaulting  the  girl  was 
entirely  unconnected  with  it,  that  the  death  was  not  caused  by  it,  but 
by  a  combination  of  circumstances,  it  would  be  accidental  death  and 
not  manslaughter.^  JVot  f/idltij. 

1  Compare  Reg.  v.  Murtou,  3  F.  &  F.  492.  In  charging  the  jury  iu  that  case 
Byles,  J.,  said  :  — 

Within  a  few  hours  of  her  death  the  woman  said  that  her  husband  had  caused  her 
deaths  but  to  some  of  the  witnesses  she  said  that  he  had  "  broken  her  heart,"  and 
that  being  turned  out  of  her  home  had  caused  her  death.  Taken  all  together  these 
dying  declarations  are,  perhaps,  more  in  favor  of  than  against  the  prisoner;  for  if  the 
woman  died  of  a  broken  heart,  and  from  anguish  at  being  turned  out  of  her  home, 
it  would  not  be  a  case  of  manslaughter.  To  constitute  that  crime  there  must  have 
been  some  physical  or  corporeal  injury,  negative  or  positive,  as  a  blow,  or  the  depri- 
vation of  necessaries,  or  the  like.  Almo.st  the  last  thing  she  had  said  was,  "  That 
villain  has  broken  my  heart."  There  was,  however,  violence,  which,  according  to  the 
evidence,  might  have  accelerated  her  death.  ...  It  is  clearly  the  law  that  if  the 
death  was  accelerated  by  violence,  so  that  death  happened  sooner  than  it  otherwise 
would  have  done,  that  is  homicide.  It  is  not  murder,  unless  death  was  intended,  but 
it  is  manslaughter  if  the  violence  hastened  the  death.  Mere  unkind  or  unhushandlike 
usage  is  not  enough,  and  there  must  be  violence,  physical  or  corporeal.  If  the  being 
treated  so  and  turned  out  of  her  home  had  preyed  upon  her  spirits  and  broken  her 
heart,  it  is  not  a  case  of  manslaughter,  and  human  tribunals  can  take  no  cognizance 
of  it  as  a  criminal  offence.  The  question,  then,  for  you  lies  in  a  very  narrow  compass 
indeed.  The  question  is,  was  the  violence  used  towards  the  deceased  on  the  kitchen 
floor  on  that  night  the  cause  of  her  death  in  this  sense  —  that  it  hastened  her  death? 
That  is,  did  it  cause  her  to  die  sooner  than  she  otherwise  would  have  died?  Did  the 
blows,  or  the  throwing  on  the  floor,  or  both  conjointly,  hasten  her  death,  and  cause 
her  to  die  sooner  than  she  otherwise  would  have  done?  If  sO|you  should  find  the 
prisoner  guilty;  if  not,  acquit  him.  —  Ed. 


SECT.  IV.]    CONNECTICUT  MUT.  LIFE  INS.  CO.  V.  N,  Y.  k  N.  H.R.  R.  CO.    87 


SECTION   IV. 
Proximity  or  Remoteness  of  Injury. 

REX  V.  GILL.  (l    L) 

King's  Bench.    1719. 

[Reported  1  Strange,  190.] 

An  indictment  for  throwing  skins  down  into  a  man's  yard,  which  was 
a  pubHc  way,  j)er  quod  another  man's  eye  was  beat  out.  On  the  e\'i- 
dence  it  appeared  the  wind  took  the  skin  and  blew  it  out  of  the  way, 
and  so  the  damage  happened. 

The  Chief  Justice  [Pratt]  remembered  the  case  of  the  hoy^  and 
that  in  Hobart,^  where,  in  exercising,  one  soldier  wounded  another,  and 
a  case  in  the  year-book,  of  a  man  lopping  a  tree,  where  the  bough  was 
blown  at  a  distance  and  killed  a  man.  And  in  the  principal  case  the 
defendants  were  acquitted. 


CONNECTICUT    MUTUAL    LIFE    INSURANCE  CO.    v.    NEW 
YORK   &   NEW    HAVEN   RAILROAD    COMPANY. 

Supreme  Court  of  Errors,  Connecticut,  1856. 

[Reported  25  Conn.  265.] 

Storrs,  J.  The  defendants,  a  railroad  company,  are  charged  with 
having  negligently  occasioned  the  death  of  one  Dr.  Beach,  by  which 
event  the  plaintiffs,  a  life  insurance  company,  have  been  compelled 
to  pay  to  his  representatives,  the  amount  of  an  insurance  effected 
upon  his  life;  of  which  amount  a  recovery  is  sought  in  this  action. 
A  plea  in  bar  sets  forth  a  payment  to  the  administratrix  of  the  deceased 
of  the  damages  for  which  the  defendants'  negligence  had  rendered 
them  legally  liable,  and  also  a  discharge  by  her.  This  plea  and  the 
demurrer  thereto  require  no  examination,  as  they  are  immaterial  in 
the  \T[ew  which  we  take  of  the  declaration. 

It  is  clear  from  the  declaration,  that  a  pecuniary  injury  has  been 
sustained  by  the  plaintiffs,  in  consequence  of  the  unlawful  conduct  of 
the  defendants.  If  the  injury  thus  set  forth  be  actionable,  or  an 
injury  in  a  legal  sense,  there  must  be  a  recovery.   .   .   . 

The  other  branch  of  our  enquiry,  relating  to  the  manner  in  which 
the  injury  complained  of  was  brought  home  to  the  p*irty  claiming  to 
have  suffered  by  it,  concerns  principles  of  great  practical  interest  and 
novel  in  their  present  application.     The  plaintiff's  sustain  no  relations 

1  Amies  v.  Stsyens,  1  Stra.  128.  "  Weaver  v.  Ward,  Hob.  134. 


88    CONNECTICUT  MUX.  LIFE  INS.  CO.  V.  N.  Y.  &  N.  H.  R.  R.  CO.   [CHAP.  II. 

to  the  authors  of  the  wrong  other  than  that  of  mere  contractors  with 
the  party  injured;  and  their  contract  Habihty  is  the  medium  through 
which  the  injury  is  brought  home  to  them.  They  justly  say,  that  their 
loss  is  in  fact  distinctly  traceable  and  solely  due  to  the  misconduct 
of  the  defendants;  that  the  death  of  Dr.  Beach,  caused  by  the  defen- 
dants, in  a  legal  sense  determined  the  only  contingency  out  of  which 
their  liability  grew,  and  brought  upon  them  the  consequences  of  that 
liability  which,  through  the  defendants'  unlawful  acts,  had  now  become 
fixed.  Still  the  question  remains,  notwithstanding  this  precise  exhibi- 
tion of  cause  and  effect,  whether  these  consequences,  of  which  the 
deceased  was  primarily  the  subject,  and  which  affected  the  plaintiffs 
only  because  they  had  put  themselves  into  the  position  of  contractors 
with  him,  were  in  a  legal  view  brought  home  to  the  plaintiffs,  directly 
or  indirectly.  The  completeness  of  the  proof  of  connection  between 
the  acts  of  the  defendants  and  the  loss  of  the  plaintiffs,  does  not 
vary,  although  it  may  tend  to  confuse  the  aspects  of  the  case.  The 
single  question  is,  whether  a  plaintiff  can  successfully  claim  a  legal 
injury  to  himself  from  another,  because  the  latter  has  injured  a 
third  person  in  such  a  manner  that  the  plaintiffs'  contract  liabilities 
are  thereby  affected.  An  individual  slanders  a  merchant  and 
ruins  his  business;  is  the  wrongdoer  liable  to  all  the  persons,  who, 
in  consequence  of  their  relations  by  contract  to  the  bankrupt,  can  be 
clearly  shown  to  have  been  damnified  by  the  bankruptcy?  Can  a 
fire  insurance  company,  who  have  been  subjected  to  loss  by  the  burn- 
ing of  a  building,  resort  to  the  responsible  author  of  the  injury,  who 
had  no  design  of  affecting  their  interest,  in  their  own  name  and  right? 
Such  are  the  complications  of  human  affairs,  so  endless  and  far-reaching 
the  mutual  promises  of  man  to  man,  in  business  and  in  matters  of 
money  and  property,  that  rarely  is  a  death  produced  by  a  human  agency, 
which  does  not  affect  the  pecuniary  interest  of  those  to  whom  the 
deceased  was  bound  by  contract.  To  open  the  door  of  legal  redress 
to  wrongs  received  through  the  mere  voluntary  and  factitious  relation 
of  a  contractor  with  the  immediate  subject  of  the  injury,  would  be 
to  encourage  collusion  and  extravagant  contracts  between  men,  by 
which  the  death  of  either  through  the  involuntary  default  of  others, 
might  be  made  a  source  of  splendid  profits  to  the  other,  and  would 
also  in\'ite  a  system  of  litigation  more  portentous  than  our  jurispru- 
dence has  yet  known.  So  self-evident  is  the  principle  that  an  injury 
thus  suffered  is  indirectly  brought  home  to  the  party  seeking  com- 
pensation for  it,  that  courts  have  rarely  been  called  upon  to  promul- 
gate such  a  doctrine.  The  case,  however,  of  Anthony  v.  Slaid,  11 
Met.  ,290,  referred  to  at  the  bar,  is  in  point.  A  contractor  for  the 
support  of  paupers  had  been  subject  to  extra  expense  by  means  of 
a  beating  which  one  of  those  paupers  had  received,  and  he  sought  from 
the  assailant  a  recovery  of  the  expenditure.  But  the  court  held  that 
the  damage  was  remote  and  indirect;  having  been  sustained  not  by 


SECT.  IV.]  CONNECTICUT  MUT.  LIFE  INS.  CO.  V.  N.  Y.  &  N.  H.  R.  E.  CO.    89 

means  of  any  natural  or  legal  relation  between  the  plaintiff  and  the 
party  injured,  but  by  means  of  the  special  contract  by  which  he  had 
undertaken  to  support  the  town  paupers. 

The  case,  however,  would  present  a  different  aspect,  if  by  \'irtue 
of  the  contract  between  the  railroad  company  and  the  deceased,  a 
direct  relation  was  established  between  the  former  and  the  insurers. 
If  the  contract  for  the  transportation  of  Dr.  Beach  safely,  either  in 
its  terms,  or  through  its  necessary  legal  incidents,  or  by  fair  inference 
as  to  the  intent  of  the  parties,  devolved  upon  the  railroad  company 
a  duty  towards  the  present  plaintiffs,  the  latter  might  sue  for  a  \iola- 
tion  of  that  duty.  An  obligation  thus  imposed  will  not  always  require 
a  suit  for  its  breach  to  be  brought  by  a  party  to  the  contract;  an  inde- 
pendent right  of  action  resides  in  the  party  to  whom  the  duty  was  to 
be  performed.  In  this  respect  there  is  no  difference  between  an  obli- 
gation imposed  by  law  and  by  contract.  Where  the  duty  of  keeping 
a  highway  is  lodged  in  a  certain  quarter  by  statute,  the  way  is  to  be 
kept  in  repair  by  the  public,  for  everybody,  and  when  any  person  is 
injured  by  its  defects,  the  breach  of  duty  is  to  him,  and  he  has  an  action 
for  the  violation  of  his  right.  If  a  stage-coach  proprietor  agrees  wath 
a  master  to  carry  his  servant,  and  injures  the  latter  on  the  road,  he  is 
liable  directly  to  the  servant;  for  although  undertaken  at  the  request 
of  and  by  agreement  with  another,  the  duty  was  directly  to  the  party 
injured.  Longmeid  and  ux  i'.  Holliday,  6  Eng.  Law  &  Eq.  R.,  563. 
But  it  is  evident  that  the  present  case  cannot  be  brought  within  the 
principle  of  such  decisions.  It  would  be  unfair  to  argue,  that  when  two 
parties  make  a  contract,  they  design  to  provide  for  an  obligation  to 
any  other  persons  than  themselves  and  those  named  expressly  therein, 
or  to  such  as  are  naturally  within  the  direct  scope  of  the  duties  and  obli- 
gations prescribed  by  the  agreement.  On  this  point  it  is  enough  to 
say,  that  when  an  agreement  is  entered  into,  neither  party  contemplates 
the  requirement  from  the  other,  of  a  duty  towards  all  the  persons 
to  whom  he  may  have  a  relation  by  numberless  private  contracts, 
and  who  may  therefore  be  affected  by  the  breach  of  the  others'  under- 
takings. We  cannot  find  that  any  public  law  charged  the  present 
defendants  with  any  duty  to  the  plaintiffs  regarding  Dr.  Beach's  life; 
nor  can  we  see  that  Dr.  Beach  exacted,  either  expressly  or  by  reasonable 
intendment,  any  obligation  from  the  defendants  towards  the  insurers 
of  his  life,  when  he  contracted  for  his  transportation  to  New  York. 
Had  the  life  of  Dr.  Beach  been  taken  \\ath  intent  to  injure  the  plaintiffs 
through  their  contract  liability,  a  different  question  would  arise,  inas- 
much as  every  man  owes  a  duty  to  every  other  not  intentionally  to 
injure   him. 

We  decide,  that  in  the  absence  of  any  pri\nty  of  contract  between 
the  plaintiffs  and  defendants,  and  of  any  direct  obligation  of  the 
latter  to  the  former  growing  out  of  the  contract  or  relation  between 
the  insured  and  the  defendants,  the  loss  of  the  plaintiffs,  although  due 


90     BOSCH  V.   BURLINGTON   AND   MISSOURI   RIVER   RY.  CO.      [CHAP.  II. 

to  the  acts  of  the  railroad  company,  being  brought  home  to  the  in- 
surers only  through  the  artificial  relation  of  contractors  with  the 
party  who  was  the  immediate  subject  of  the  wrong  done  by  the  rail- 
road company,  was  a  remote  and  indirect  consequence  of  the  miscon- 
duct of  the  defendants,  and  not  actionable. 


BOSCH  V.  BURLINGTON  &  MISSOURI  RIVER  RAILWAY 

COMPANY. 

Supreme  Court  of  Iowa,  1876. 

[Reported  44  la.  402.] 

It  is  alleged  in  the  petition  that  plaintiffs  are  the  owners  of  certain 
lots  in  the  city  of  Burlington  upon  which  they  had  costly  improve- 
ments, consisting  of  a  brewery  and  appurtenances;  that  one  of  said 
lots,  being  No.  25,  is  bounded  on  the  east  by  Front  street,  and  others 
are  immediately  back  of,  or  west  from  said  lot  25;  that  said  lot  25  is 
bounded  on  the  south  by  Angular  street;  that  according  to  the  city 
plan  Front  street  extends  from  the  easterly  line  of  said  lot  25  to  the 
Mississippi  river,  its  width  being  governed  by  the  meander  line  of  the 
river,  and  in  front  of  lot  25  being  sixty  feet  wide,  and  that  said  Angular 
street  also  extended  to  the  river,  which  gave  the  plaintiffs  easy  access 
to  the  river  by  way  of  said  streets. 

It  is  further  alleged  that  the  defendant  entered  upon  said  Front 
street  and  said  Angular  street,  and  by  deposits  of  earth  filled  Front 
street  to  the  east  in  the  river  so  as  to  make  the  space  between  the 
lots  and  the  river  at  least  eight  hundred  feet,  and  laid  down  thereon 
a  number  of  railroad  tracks  within  a  few  feet  of  each  other  on  the 
entire  width  of  said  street  and  to  within  a  few  feet  of  plaintiffs' 
lots,  and  built  thereon  warehouses,  depots  and  other  buildings,  and 
continued  to  occupy  the  same  with  said  buildings  and  freight  cars, 
using  the  premises  as  a  car  yard  and  for  making  up  trains,  and  so  en- 
tirely obstructed  the  same  as  to  entirely  divert  its  use  as  a  street,  so 
that  neither  said  Front  or  Angular  streets  east  of  plaintiffs'  lots  could 
be  used  for  the  purposes  of  an  ordinary  highway;  that  the  city  of 
Burlington,  pre\'ious  to  October,  1871,  had  provided  an  efficient  fire 
department  with  steam  engines,  hose  and  all  necessary  appliances 
for  the  extinguishment  of  fires,  and  that  about  October,  1871,  a  build- 
ing situated  about  one  block  north  of  plaintiffs'  lots  and  across  a  street 
eighty  feet  wide  from  the  block  in  which  plaintiffs'  lots  are  situated 
accidentally  took  fire;  that  no  combustible  material  was  nearer  said 
fire  in  the  direction  of  plaintiffs  than  about  one  hundred  feet;  that  the 
firemen  with  their  engines  were  on  the  ground  in  a  few  minutes  after 
the  fire  began  and  an  hour  before  the  fire  reached  the  block  in  which 


SECT.  IV.]      BOSCH    V.  BURLINGTON    AND    MISSOURI   RIVER   RY.  CO.     91 

plaintiffs'  lots  are  situated;  that  during  all  that  time  the  firemen  used 
all  efforts  to  reach  the  river  with  the  engines  and  hose,  but  the  street 
was  so  occupied  and  encumbered  by  the  railroad  that  it  could  not  be 
done,  nor  could  the  river  be  reached  in  any  other  way,  on  account 
thereof,  and  that  on  account  of  the  said  illegal  obstructions  put  in 
the  way  by  the  defendant  the  fire  communicated  to  the  plaintiffs' 
property  which  was  entirely  destroyed;  that  but  for  said  obstruction 
the  river  could  and  would  have  been  reached  and  water  procured, 
and  said  fire  would  have  been  extinguished  before  it  reached  plaintiffs' 
property.  Damages  are  claimed  for  the  value  of  the  property  destroyed 
by  fire,  amounting  to  over  $22,000. 

To  this  petition  there  was  a  demurrer,  which  was  sustained  and  the 
cause  was  dismissed  at  plaintiffs'  cost,  and  they  appeal. 

RoTHROCK,  J.  Aware  as  we  are  of  the  difficulty  in  many  cases  in 
determining  whether  damages  claimed  should  be  regarded  as  proximate 
or  remote,  yet  we  are  united  in  the  opinion  that  the  court  below  cor- 
rectly determined  that  no  recovery  can  be  had  upon  the  allegations 
in  this  petition,  for  the  reason  that  the  damages  are  not  the  direct 
and  proximate  result  of  the  wrongs  complained  of,  but  are  too  remote. 
In  the  case  of  Insurance  Company  v.  Friend,  7  Wallace,  49,  it  is  said: 
*'We  have  had  cited  to  us  a  general  re\dew  of  the  doctrine  of  proxi- 
mate and  remote  causes  as  it  has  arisen  and  has  been  decided  in  the 
courts  in  a  great  variety  of  cases.  It  would  be  an  unprofitable  labor 
to  enter  into  an  examination  of  these  cases.  If  we  could  deduce  from 
them  the  best  possible  expression  of  the  rule,  it  would  remain  after 
all  to  decide  each  case  largely  upon  the  special  facts  belonging  to  it, 
and  often  upon  the  very  nicest  discriminations." 

We  do  not  regard  the  facts  of  this  case  as  an  approach  to  the  dividing 
line  where  distinctions  become  shadowy  and  discriminations  difficult 
to  be  made.  If  any  damages  were  recoverable  for  the  obstruction  of 
the  streets  by  an  improper  construction  of  defendant's  road,  thus  de- 
priving plaintiffs  of  convenient  access  to  the  river,  they  were  recov- 
erable by  reason  of  the  obstruction  of  the  streets,  and  simply  because 
the  streets  were  obstructed,  and  not  by  reason  of  a  fire,  which  could 
not  be  extinguished  because  the  defendant  occupied  and  used  the 
streets  for  a  railroad. 

We  have  examined  the  cases  cited  by  counsel  for  appellants,  and 
although  they  are  ingeniously  presented,  yet  the  facts  in  this  case 
are  so  widely  different  from  any  of  them  that  we  cannot  regard  them 
as  applicable.  The  nearest  approach  to  this  case  is  that  of  the  Metallic 
Compression  Co.  v.  Fitchburg  Railroad  Company,  109  Mass.  277. 
In  that  case  the  facts  were  that  plaintiff's  manufacturing  establish- 
ments, situated  about  fifty  feet  from  defendant's  railroad  track,  were 
on  fire.  Two  fire  engines  were  brought  on  the  ground,  the  hose  was 
laid  across  the  railroad  track  to  a  hydrant,  and  water  was  being  thrown 
on  the  fire  which  was  being  diminished.     A  freight  train  approached. 


92  HOLLENBECK   V.    JOHNSON,  [CHAP.  II. 

and  although  warned  in  time,  the  employees  of  defendant  neghgently 
ran  across  the  hose,  severing  it,  and  stopping  the  supply  of  water,  and 
the  building  was  burned.     The  defendant  was  held  liable. 

We  suppose  without  question  that  if  one  should  in  any  manner,  by 
cutting  the  hose,  disabling  the  engine  or  the  like,  stop  the  stream  of 
water  by  reason  of  which  act  property  is  destroyed  he  would  be  liable, 
because  the  damages  are  the  direct  and  proximate  result  of  his  act. 
But  in  the  case  at  bar  the  building  of  the  railroad  tracks  and  depots, 
the  widening  and  filling  the  streets  have  no  connection  with  the  fire, 
nor  with  the  hose  or  other  apparatus  of  the  fire  companies.  They  are 
independent  acts,  and  their  influence  in  the  destruction  of  plaintiffs' 
property  is  too  remote  to  be  made  the  basis  of  recovery. 

Ajffirme'd. 


C  HOLLENBECK  v.  JOHNSON. 

Supreme  Court  of  New  York,  1894. 

[Reported  79  Hun,  499.] 

Hardin,  P.  J.  January  3,  1892,  the  parties  resided  in  the  village  of 
Fabius.  The  plaintiff  was  in  possession  of  twenty-two  acres  of  land 
as  a  tenant,  which  he  had  occupied  some  four  years;  and  upon  the 
premises  so  occupied  by  him  was  a  barn,  about  five  rods  north  of 
and  fronting  on  North  street,  in  which  barn  were  several  doors  open- 
ing toward  the  street.  The  barn  had  been  built  some  forty-five  years. 
Under  the  floor,  near  the  north  side  of  the  barn,  was  a  cistern  about 
ten  feet  across  the  top  and  about  nine  feet  deep,  over  which  were 
stringers  about  three  feet  apart.  The  cistern  had  been  covered  over 
with  inch  hemlock  boards  about  two  feet  below  the  barn  floor.  On  that 
day  the  plaintiff  kept  in  the  barn  his  hens,  hay  and  fodder,  and  a  cow 
and  a  horse.  There  was  no  road  fence  in  front  of  the  barn,  and  the 
small  door  of  the  barn  was  allowed  by  the  plaintiff  to  remain  open  on 
the  day  in  question,  "  and  there  was  nothing  to  prevent  cattle  passing 
along  said  street  from  entering  said  barn  through  said  small  door." 
Some  fifty  rods  distant  from  the  barn  of  the  plaintiff  the  defendant 
resided,  and  was  the  owner  of  a  cow  which  he  kept  on  his  premises, 
which  cow  weighed  about  800  pounds.  About  one  o'clock  of  the 
3d  of  January,  1892,  the  defendant  led  his  cow  from  his  barn  into 
an  inclosed  yard  south  of  and  adjoining  his  barn ;  closed  the  gate  through 
which  the  cow  had  entered  the  yard,  and  fastened  it  on  the  inside  with 
a  wooden  pin  and  on  the  outside  with  a  hook  and  staple.  The  yard  was 
fenced  all  around  by  a  picket  fence  and  a  high  board  fence  some  four 
feet  high.  About  two  o'clock  in  the  afternoon  of  the  day  the  defendant 
went  to  his  yard,  and  found  the  little  gate  open  and  the  cow  gone, 
and  he  immediately  commenced  to  search  for  her  and  continued  his 
search  until  about  four-thirty  p.  m.,  when  he  learned  that  there  was  a 


SECT.  IV.]  HOLLENBECK   V.    JOHNSON.  93 

COW  in  the  cistern  under  the  plaintiff's  barn,  and  there  found  the  fact 
to  be  that  his  cow  was  then  in  the  plaintiff's  cistern.  It  appears  the  de- 
fendant's cow  escaped  from  his  inclosure  without  any  fault  of  his  and 
passed  over  his  premises  to  the  premises  of  the  plaintiff  and  entered 
through  the  small  door  of  plaintift''s  barn  to  a  point  over  the  cistern, 
and  when  she  reached  the  sleepers  of  the  floor  over  the  cistern  they 
gave  way,  being  very  much  decayed  and  impaired  by  age,  and  the  cow 
fell  into  the  cistern  "carrying  down  with  it  three  sleepers,  and  the 
plank  under  said  cow  also  broke  and  said  cow  fell  down  into  the  cistern, 
and  when  found  had  one  horn  loosened  and  her  skull  broken."  "The 
hole  made  in  the  floor  by  the  cow  breaking  through  was  about  three 
feet   across,   but  with  irregular  edges." 

The  referee  finds,  viz.:  "That  about  three  o'clock  in  the  afternoon 
of  January  3,  1892,  the  plaintiff,  George  Hollenbeck,  went  to  the  barn 
so  occupied  by  him  as  aforesaid,  and  saw  some  cattle  tracks  on  the 
outside,  by  the  barn  door,  and  then  went  into  the  barn  through  the 
small  door,  but  discovered  no  cattle  there,  and  then  went  into  the 
granary,  which  was  a  little  northwest  of  the  place  where  the  break  in 
the  floor  occurred,  and  got  some  feed  for  his  hens  and  returned  to  the 
front  part  of  the  barn  and  there  threw  it  down.  Plaintiff  then  started 
to  go  where  his  cow  was  in  the  lean-to  or  addition  to  see  if  she  was 
loose,  and  in  going  in  that  direction  and  upon  that  errand  fell  into  the 
cistern  through  the  hole  made  by  defendant's  cow  when  she  fell  through 
the  floor.  .  .  .  Plaintiff  did  not  observe  any  break  or  defect  in  the 
floor,  and  did  not  know  of  any  break  or  defect  therein  until  after 
he  had  fallen  into  said  cistern."  It  is  found  that  the  plaintiff  sustained 
some  injuries  about  the  shoulders  and  neck  by  the  fall.  It  is  found  that 
the  plaintiff  at  the  time  of  said  injuries,  and  for  "some  years  previ- 
ous thereto,  knew  that  there  was  a  cistern  under  said  barn,  .  .  .  and 
was  informed  and  knew  that  a  board  covering  had  been  placed  over 
it  about  two  years  previous  to  the  time  of  the  injury,  but  never  had 
been  under  the  barn  and  did  not  know  the  exact  place  where  said 
cistern  under  said  barn  was  located."  And  the  referee  finds:  "Plaintiff 
had  not,  at  the  time  of  said  injury,  nor  at  any  time  pre\'ious  thereto, 
any  knowledge  or  information  that  said  barn  floor  or  the  timbers 
upon  which  it  rested  were  weak  and  rotten  or  in  any  way  defective  and 
unsafe.  An  examination  of  said  sill  and  sleepers  made  under  the  barn 
previous  to  said  injury  would  have  revealed  the  weakness  and  rotten- 
ness subsequently  found  to  exist,  but  plaintiff,  having  no  knowledge 
of  such  weakness  and  rottenness  previous  to  the  injury,  made  no 
examination   of  them." 

The  referee  found:  "There  was  no  evidence  given  upon  the  trial 
showing,  or  tending  to'  show,  that  defendant's  cow  assaulted  plain- 
tiff's person,  nor  that  she  in  any  manner  injured  his  person  by  coming 
in  contact  with  it."  "That  there  was  no  evidence  given  upon  the  trial 
showing  or  tending  to  show  that  defendant's  cow  was  \'icious,  unruly 


94  HOLLENBECK    l'.    JOHNSON.  [CIIAP.  II. 

or  ugly."  "That  in  the  keeping  and  care  of  his  cow  defendant 
has  in  all  things  exercised  proper  care,  and  when  his  said  cow  escaped 
from  the  yard,  as  stated  in  the  fourth  finding  of  fact,  it  was  without 
fault  or  negligence  on  his  part." 

In  the  conclusions  of  law  the  referee  stated  that  the  plaintiff  was 
not  bound  to  maintain  a  fence  upon  the  highway;  that  his  failure  to 
fence  the  street  or  highway  does  not  prevent  a  recovery  in  an  action  of 
trespass  where  the  entry  upon  his  premises  was  from  the  street,  antl  that 
the  entry  of  the  defendant's  cow  upon  the  premises  of  the  plaintiff 
from  the  highway  into  his  barn  and  the  breaking  down  of  the  sills, 
sleepers  and  floor  "  is  a  trespass  for  which  the  plaintiff  in  this  action  is 
entitled  to  recover  against  the  defendant  herein  one  dollar."  He  also 
found,  as  matter  of  law,  "that  the  plaintiff  is  not  guilty  of  any  con- 
tributory negligence  or  want  of  care  that  would  debar  him  from  a 
recovery  in  this  action,  for  the  injury  to  his  person  caused  by  falling 
into  the  cistern,  as  stated  in  the  sixth  finding  of  fact  herein."  "That 
the  plaintiff  in  this  action  cannot  recover  of  the  defendant  herein  any 
damage  for  the  injury  to  his  person  caused  by  his  falling  into  the 
cistern,  as  stated  in  the  sixth  finding  of  fact.  That  the  injury  to  plain- 
tiff's person  caused  by  his  falling  into  the  cistern  is  not  proximately 
connected  with  the  trespass  of  the  defendant's  cow,  and  any  damage 
resulting  to  plaintiff's  person  from  such  fall  is  remote  and  conse- 
quential, and  no  recovery  therefor  can  be  had  in  this  action.  That  the 
defendant  is  not  chargeable  in  this  action  with  any  w^ant  of  care  or 
prudence  in  taking  care  of  his  cow.  That  the  injury  suffered  by  plain- 
tiff by  falling  into  the  cistern  was  not  such  as  would  usually  and  prob- 
bably  result  from  the  escape  and  subsequent  trespass  of  defendant's 
cow,  and  was  not  such  an  injury  as  might  reasonably  have  been  an- 
ticipated from  such  trespass.  That  the  injury  to  plaintift''s  person 
caused  by  falling  into  the  cistern  was  not  such  as  defendant  could, 
with  the  exercise  of  ordinary  care,  prudence  and  foresight,  have  guarded 
against."  Ample  evidence  was  given  to  sustain  the  findings  of  fact 
made  by  the  learned  referee.  It  is  now  insisted,  in  behalf  of  the  appel- 
ant, by  his  learned  counsel,  and,  we  think,  correctly,  that  the  defendant 
is  answerable  "  for  his  own  trespass,  and  also  for  that  of  his  domestic 
animals."  (Dunckle  v.  Kocker,  11  Barb.  387;  Fairchild  v.  Bentley, 
30  id.  155;  Van  Leuven  v.  Lyke,  1  Comst.  515;  Dickson  v.  McCoy, 
39  N.  Y.  400;  Wells  v.  Howelf,  19  Johns.  385.) 

It  is  contended  by  the  appellant's  counsel  that  inasmuch  as  the  cow 
made  the  hole  while  trespassing  upon  the  plaintiff's  premises,  into 
which  the  plaintiff  fell  and  received  the  injuries  complained  of,  that  he 
can  recover  for  such  injuries;  and  it  is  contended  "that  the  damages 
were  the  immediate  and  natural  consequence  of  the  trespass  .  .  .  and 
that  the  defendant  is  liable  for  the  entire  damages  sustained  by  the 
plaintiff.   .   .  ." 

The  facts  and  circumstances  arising  in  the  case  in  hand  strongly 


SECT.    IV.]     CENTRAL    OF    GEORGIA    RAILWAY    COMPANY   V.   PRICE.      95 

indicate  that  no  human  foresight  would  apprehend  that  any  such 
result  would  follow,  or  that  the  defendant  at  the  time  he  led  his  cow 
out  of  the  barn  at  one  o'clock  and  placed  her  securely  in  his  yard 
adjacent  to  his  barn  could  foresee  that  in  some  unexpected  way  the 
gate  to  his  yard  would  l)e  opened,  and  the  cow  pass  off  his  premises 
down  the  street,  and  enter  the  door  of  the  barn  of  the  plaintiff,  if 
found  open,  and  go  into  the  barn  across  the  floor  over  a  cistern  under  the 
floor,  and  that  the  floor  over  the  cistern  would  be  so  much  decayed  that 
it  would  fall  in  the  manner  in  which  the  evidence  discloses  it  did, 
and  leave  an  aperture  which  would  be  subsequently  visited  by  the 
plaintiff,  who,  without  gi^^ng  full  attention  to  his  movements,  would 
fall  through  the  floor  into  the  cistern,  and  receive  the  injuries  of  which 
he  complains  in  this  action.  We  think  the  damages  sustained  by  the 
plaintiff  were  not  the  proximate  result  of  any  wrongful  act  of  the  defend- 
ant, and  that  they  were  too  remote,  and  that  the  learned  referee  prop- 
erly refused  to  award  damages  to  the  plaintiff  sustained  in  consequence 
of  the  fall  into  the  cistern.  The  conclusions  reached  by  the  learned 
referee  are  approved,  and  the  judgment  entered  thereon  should  be 
affirmed. 
Martin  and  Merwin,  J  J.,  concurred. 

Judgment  affirmed,  with  costs. 


CENTRAL   OF    GEORGIA    RAILWAY    COMPANY    v.    PRICE. 

Supreme  Court  of  Georgia,  1898. 

[Reported  106  Ga.   176.]  '  ■  ^ 

Simmons,  C.  J.  The  record  discloses  that  Mrs.  Price  was  a  passen- 
ger on  a  train  of  the  defendant  company,  and  that  her  destination  was 
Winchester,  Georgia.  Through  the  negligence  of  the  conductor,  she 
was  not  put  off  at  Winchester,  but  was  carried  on  to  Montezuma. 
Upon  her  arrival  at  the  latter  place,  the  conductor  advised  her  to  go 
to  the  hotel  and  spend  the  night,  he  agreeing  to  carry  her  back  to 
Winchester  in  the  morning  when  his  train  made  the  return  trip.  He 
accompanied  her  to  a  hotel  where  a  room  was  assigned  her,  the  con- 
ductor agreeing  with  the  proprietor  to  pay  her  expenses.  She  was  taken 
to  her  room  by  the  proprietor  or  his  servants,  and  furnished  with  a 
kerosene  lamp  which  she  left  burning  after  she  had  retired  to  bed. 
Sometime  during  the  night  the  lamp,  she  claims,  exploded  and  set 
fire  to  a  mosquito  net  which  covered  the  bed,  and  in  her  efforts  to  ex- 
tinguish the  flames  her  hands  were  badly  burned.  .  .  . 

The  injury  was  occasioned  by  the  negligence  of  the  proprietor  of 
the  hotel  or  his  servants  in  giving  her  a  defective  lamp.  The  neg- 
ligence of  the  company  in  passing  her  station  was,  therefore,  not  the 


Ly 


96  CLARK   V.    GAY.  [CHAP.  II. 

natural  and  proximate  cause  of  her  injury.  There  was  the  interposi- 
tion of  a  separate,  independent  agency,  the  neghgence  of  the  proprie- 
tor of  the  hotel,  over  whom,  as  we  have  shown,  the  railway  company 
neither  had  nor  exercised  any  control.  Ci\al  Code,  §§3912,  3913; 
Perry  v.  Central  Ry.,  66  Ga.  746;  Mayor  etc.  of  Macon  v.  Dykes, 
103  Ga.  847;  South-Side  etc.  Co.  v.  Trich,  117  Pa.  St.  390,  ll' Atl. 
627;  Wood  v.  Railway  Co.  117  Pa.  St.  306,  35  Atl.  699;  Lewis  v.  Ry.  Co., 
54  Mich.  55,  19  N.  W.  744;  Hoag  v.  Ry.  Co.,  85  Pa.  St.  293;  Sira  v.  Ry. 
Co.,  115  Mo.  127,  21  S.  W.  905;  Gulf  etc.  Ry.  Co.  v.  Shields,  9  Tex. 
Civ.  App.  652,  29  S.  W.  652;  Smith  r.  Bolles,  132  U.  S.  125.  The  in- 
juries to  the  plaintiflF  were  not  the  natural  and  proximate  consequences 
of  carrying  her  beyond  her  station,  but  were  unusual  and  could  not 
have  been  foreseen  or  provided  against  by  the  highest  practicable 
care.  The  plaintiff  was  not  entitled  to  recover  for  such  injuries,  and 
the  court  erred  in  overruling  the  motion  for  new  trial. 

Judgment  reversed. 


Q  CLARK  V.   GAY. 

Supreme  Court  of  Georgia,  1901. 

[Reported  112  Ga.  117.] 

W.  W.  Clark  alleged,  that  A.  A.  Gay  endamaged  him  one  thousand 
dollars  or  other  large  sum,  for  that  said  Gay  sought  one  of  the  hired 
servants  (a  colored  man)  of  petitioner,  for  the  sole  purpose  of  ha\'ing 
a  difficulty  with  him;  that  he  approached  said  negro  near  the  premises 
of  petitioner,  with  the  intention  of  raising  a  difficulty  wdth  him,  wil- 
fully, and  in  bad  faith  toward  petitioner,  [and]  did  raise  a  difficulty 
with  said  negro,  who  at  once  fled  from  said  Gay  toward  petitioner's 
house,  said  Gay  pursuing  him  with  pistol  in  hand;  that  Gay  forced 
said  negro  into  petitioner's  yard  and  on  into  petitioner's  house,  and 
therein  murdered  said  negro  near  where  petitioner's  infant  child  was 
Ijang  asleep;  that  said  acts  and  said  murder  were  committed  by  said 
Gay  in  the  presence  of  petitioner's  family,  wilfully  and  wdth  intent  to 
wrong  petitioner,  which  terrorized  and  frightened  them  away  from 
their  said  home,  which  ever  since  they  have  absolutely  abandoned, 
and  refuse  to  live  in  the  house  or  in  any  manner  occupy  the  same,  thus 
rendering  said  house  useless  to  petitioner,  which  house  was  worth, 
before  committing  said  crime  in  same,  S500  or  other  large  simi  to  peti- 
tioner. Beside  the  prayer  for  process,  judgment  is  prayed  against  Gay 
for  SI, 000.  , 

Lewis,  J.  After  a  careful  study  of  the  petition,  the  only  definite 
purpose  that  we  can  gather  from  it  is  to  recover  the  value  of  the 
plaintiflF's  house  on  account  of  the  defendant's  unlawfully  pursuing  a 
servant  of  the  plaintiff  and  killing  him  in  the  house.     There  is  no 


SECT.    IV.]      ELLIOTT    V.    ALLEGHENY    COUNTY   LIGHT    COMPANY.         97 

allegation  of  actual  physical  damage  done  to  the  house,  nor  is  there 
anything  to  show  that  it  was  not  in  as  good  condition  after  the 
homicide  as  before.  We  cannot  imagine,  therefore,  how  the  value  of 
the  house  can  be  made  the  measure  of  the  damage  alleged  to  have 
been  caused  by  the  wrongful  conduct  of  the  defendant. 

The  petition  in  this  case  is  too  loose  and  indefinite  to  support  a 
recovery  of  any  kind.  We  do  not  mean  to  say  that  the  conduct  charged 
against  the  defendant  could  not  be  made  the  basis  of  a  valid  civil 
action  against  him  in  favor  of  the  plaintiff.  An  action  might  have 
been  sustained  for  the  unlawful  killing  of  the  plaintiff's  servant,  to 
recover  damages  for  the  loss  of  the  services  of  the  servant.  There 
might  also  have  been  a  suit  for  trespass  and  invasion  of  the  plaintiff's 
home,  or  for  injury  to  his  peace  and  happiness,  resulting  from  the  out- 
rage committed  in  the  presence  of  his  family.  This  suit,  however, 
embraces  none  of  these  elements.  Taken  as  a  whole,  the  petition  ex- 
cludes the  idea  that  the  plaintiff  is  seeking  damages  of  any  kind  save 
those  mentioned  in  the  preceding  di\nsion  of  this  opinion;  and  it  is 
too  indefinite  to  be  sustainable  on  any  theory. 

Judgment  affirmed. 


ELLIOTT  V.  ALLEGHENY  COUNTY  LIGHT  COMPANY. 
Supreme  Court  of  Pennsylvania,  1903. 

[Reported  204  Pa.  568.] 

Potter,  J.  The  appellant,  while  engaged  as  a  painter,  fell  from,  or 
with,  a  ladder  that  slipped  from  its  proper  position,  while  he  was  using 
it.  In  the  effort  to  save  himself  he  reached  out,  while  in  the  act  of 
falling,  and  clutched  at  an  electric  light  wire,  which  was  supported 
from  brackets  at  the  side  of  the  building.  It  is  claimed  that  this  wdre 
was  not  properly  insulated,  and  for  that  reason  the  appellant  was 
shocked  and  burned,  and  was  possibly  thereby  prevented  from  miti- 
gating the  force  of  his  fall. 

At  the  close  of  the  testimony,  the  trial  judge  gave  binding  instruc- 
tions in  favor  of  the  defendant,  upon  the  ground  that  the  proximate 
cause  of  the  plaintiff's  injuries  was  his  fall  from  the  ladder;  and  not 
his  grasping  the  wire  in  the  line  of  the  fall.  This  view  was  manifestly 
correct.  It  is  undisputed  that  the  defendant  was  in  nowise  responsible 
for  the  slipping  of  the  ladder,  which  was  the  originating  cause  of  the 
plaintiff's  fall.  It  would  be  speculative  in  the  extreme,  to  attempt  to 
differentiate  between  the  extent  of  the  injury  which  he  did  receive, 
and  that  which  he  would  probably  have  received,  if  he  had  not  come  in 
contact  with  the  electric  light  wire  in  the  course  of  his  fall.  It  is  quite 
possible  that  the  wire  helped  to  break  the  fall,  and  thus  lessen  the 


98  WINEBERG   V.    DUBOIS   BOROUGH.  [CHAP.  II. 

extent  of  the  injury.  But  even  if  the  presence  of  the  wire  in  the  con- 
dition in  which  it  was,  made  the  consequences  of  the  fall  more  serious, 
yet  it  did  not  bring  about  the  accident,  nor  was  it  in  any  sense  the 
efficient  responsible  cause  of  the  injury. 

It  was  the  duty  of  the  learned  trial  judge,  upon  the  admitted  facts 
of  this  case,  to  determine  the  question  of  proximate  cause,  and  he  was 
right  in  refusing  to  submit  it  to  the  jury. 

The  judgment  is  affirmed. 


WINEBERG  V.   DuBOIS  BOROUGH. 

O 

Supreme  Court  of  Pennsylvania,  1904. 

[Reported  209  Pa.  430.] 

Potter,  J.  The  plaintiff  while  walking  along  the  board  walk  upon 
a  public  street  of  the  borough  of  DuBois,  on  a  dark  rainy  evening, 
fell  from  the  walk  upon  the  side  next  the  property  line,  and  sprained 
her   knee. 

Plaintiff  was  confined  to  her  bed  for  six  weeks  or  more  and  was 
not  able  to  move  about  until  July.  After  that  she  was  able  to  walk 
on  crutches  until  September.  After  September  she  was  able  to  get 
along  with  a  cane,  and  by  supporting  herself  by  leaning  on  objects 
in  the  room.  Her  knee  was  stiff  and  still  pained  her.  On  February 
23,  1903,  she  had  a  second  fall  which  she  says  was  caused  by  her  well 
foot  slipping  and  by  reason  of  her  other  leg  being  stiff  she  could  not 
save  herself  from  falling,  and  as  a  result,  she  received  additional  injury 
to  the  limb  which  had  been  hurt  before.  She  testified  on  cross-exam- 
ination that  she  did  not  use  a  cane  at  that  time  when  walking  about 
in  the  house.  After  the  second  accident,  plaintiff's  condition  was 
worse;  she  suffered  very  much  and  had  to  go  to  bed  again.  She  has 
never  been  able  to  walk  without  crutches  since  that  time.  The  doctor 
testified  that  the  fall  made  the  condition  of  the  leg  worse  in  that  it 
inflamed  it  but  that  it  made  it  better  by  limbering  up  the  stiff  joint. 

The  court  below  submitted  the  question  to  the  jury  whether  the 
negligence  of  the  borough  was  the  proximate  cause  of  the  second 
accident,  in  the  following  language:  "There  is  still  another  question 
involved  in  this  case  and  that  is,  what  effect  the  second  accident 
which  happened  to  this  woman  had  upon  her  claim.  And  upon  that 
we  say  to  you,  that  all  persons  in  life  are  required  to  exercise  due  and 
proper  care  in  all  their  relations  of  life,  and  this  woman  after  she  was 
injured  by  the  fall  on  the  pavement  was  required  to  exercise  due  care, 
not  only  in  performing  her  houseliold  duties  but  on  the  streets  and 
every  place  else  and  if  she  failed  to  exercise  due  care  in  walking  around 
and  as  a  result  of  her  negligence  slie  was  injured  a  second  time  she  could 
not  recover  for  the  second  injury.  ...  At  the  same  time  I  understand 


SECT.  IV.]  MARSH   V.    GILES.  99 

the  plaintiffs  were  claiming  that  the  second  accident  was  the  result 
of  the  first  one,  and  I  was  just  coming  to  that  branch  of  the  case.  That 
if  a  person  is  injured  and  crippled,  and  as  a  result  of  that  it  is  impossible 
with  safety  to  walk  through  the  house  or  about  the  streets,  and  if  in 
walking  about  and  exercising  due  care  a  second  accident  results,  wh;y 
that  results  from  the  first  accident,  because  if  it  had  not  been  for  the 
first  accident  the  second  wouldn't  have  occurred.  ...  As  I  said 
before,  the  question  arises  whether  the  second  accident  was  the  result 
of  negligence  or  not.  If  it  was  not,  of  coiu-se  the  borough  would  not  be 
liable  the  same  as  for  the  first." 

This  instruction  was  too  broad.  It  made  the  borough  liable  for  the 
result  of  the  second  fall,  even  though  it  were  purely  accidental.  The 
second  accident  did  not  occur  upon  the  streets  of  the  borough,  but  in 
the  house  of  the  plaintiff.  It  was  not  caused  by  the  injured  leg,  but 
by  the  slipping  of  the  sound  foot.  It  does  not  seem  that  counsel  for 
the  plaintiff  intended  to  charge  the  defendant  with  the  results  of  this 
second  fall,  for  they  expressly  disclaimed  any  intention  of  claiming 
damages  upon  that  account,  when  the  testimony  was  offered,  and  said 
that  they  only  sought  to  use  it  as  accounting  for  the  condition  of  the 
plaintiff.  Yet  the  court  in  the  charge  called  the  attention  of  the  jury 
to  the  pain  and  suffering  resulting  from  the  second  accident.  We 
think  it  is  clear  from  the  evidence  that  the  first  injury  was  not  in  any 
way  the  proximate  cause  of  the  second  accident,  and  that  the  jury 
should  have  been  instructed  not  to  include  its  results  in  awarding  dam- 
ages for  the  negligence  of  the  defendant  in  causing  the  first  injury  to 
the   plaintiff. 

The  question  of  whether  or  not  the  plaintiff  was  guilty  of  contribu- 
tory negligence  in  not  taking  proper  care  of  herself  at  the  time  she 
suffered  the  second  fall  does  not  arise  in  this  case.  The  mistake  of 
the  trial  judge  was  in  holding  that  there  was  any  relation  of  cause 
and  effect  between  the  two  accidents.  We  see  none,  under  the  testi- 
mony. 

The  seventh  assignment  of  error  is  sustained,  and  the  judgment  is 
reversed,  with  a  venire  facias  de  novo.^ 


MARSH  V.  GILES. 

o 

Supreme  Court  of  Pennsylvania,  1905. 

[Reported  211  Pa.  17.] 

Fell,  J.  The  facts  that  give  rise  to  the  question  involved  are 
these:  The  defendants  owned  a  stone  yard  which  fronted  on  a  main 
street  and  extended  back  to  a  narrow  street  on  which  the  children 

1  See  also  WIeting  v.  Millston,  77  Wis.  523. —Ed. 


100  MAESH   V.    GILES.  [CIIAP.  II. 

who  lived  in  the  vicinity  were  accustomed  to  play.  Some  days  before 
the  accident  the  defendants  had  placed  on  the  unpaved  footways  of 
the  back  street  a  number  of  stones,  one  of  which,  three  feet  long, 
about  six  inches  wide  and  three  inches  thick,  was  in  a  slanting  position, 
one  end  resting  on  the  ground  and  the  other  against  an  electric  light 
pole.  One  of  the  plaintiffs,  a  boy  not  quite  seven  years  of  age,  lived 
with  his  father,  the  other  plaintiff,  on  the  opposite  side  of  the 
street.  He  had  seen  a  policeman  strike  the  pole  with  his  club  when 
the  light  had  accidentally  gone  out.  He  suggested  to  a  companion 
nine  years  of  age  that  they  light  the  electric  light  by  jarring  the  pole 
as  they  had  seen  the  policeman  do.  The  younger  boy  placed  his 
arms  around  the  pole  and  the  elder  boy,  standing  on  the  other  side 
of  the  pole,  drew  the  upper  edge  of  the  stone  back  and  then  pushed  it 
forward  or  let  it  fall  against  the  pole.  While  they  were  thus  engaged, 
a  finger  of  the  younger  boy  got  between  the  stone  and  the  pole  and 
was  injured. 

The  jury  were  instructed  that  the  use  of  the  footway  for  the  storage 
of  stone  was  unauthorized,  and  that  if  the  situation  at  the  time  ^'as 
such  as  would  have  caused  a  reasonably  prudent  person  to  apprehend 
danger  to  an  adult  or  child,  the  defendants  were  negligent  and  a  verdict 
might  be  rendered  against  them. 

A  finding  of  negligence  in  placing  the  stone  against  the  pole  in  the 
footway  was  not  conclusive  against  the  defendants.  There  still  re- 
mained the  question  whether  their  negligence  was  the  proximate 
cause  of  the  injury.  On  this  the  case  turned.  If  we  assume  that  the 
defendants  had  no  right  to  place  the  stone  on  the  footway  and  were  neg- 
ligent in  so  doing,  they  were  liable  only  for  the  natural  and  probable 
consequences  of  the  wrongful  act.  An  injury  occasioned  by  the  stone 
falling  on  a  person  passing,  or  by  its  being  pushed  over  by  children 
playing  on  the  street,  would  have  been  a  direct  consequence  of  the 
defendants'  act  and  one  which  they  were  bound  to  foresee.  But  the 
plaintiff's  injury  was  the  immediate  consequence,  not  the  position 
of  the  stone  as  placed  by  the  defendants,  but  of  the  independent, 
intervening  act  of  the  plaintiff's  companion  in  making  a  use  of  the 
stone  not  reasonably  to  have  been  foreseen.  If  the  stone  had  been 
flat  on  the  ground  and  the  injury  had  resulted  from  an  attempt  to  lift 
it,  or  had  it  been  a  smaller  stone  which  the  boy  could  have  taken  in  his 
hand  and  the  injury  had  resulted  while  he  was  pounding  the  pole  wnth 
it,  the  want  of  causal  connection  between  the  act  of  the  defendants 
and  the  injury  would  not  have  been  more  clear.  The  plaintiff's  in- 
jury could  not  reasonably  have  been  contemplated  as  a  result  of  the 
defendants'  act  in  placing  the  stone  on  the  footway.  It  was  caused  by 
the  wholly  unrelated  and  unforeseen  act  of  another.  The  case  is  unlike 
that  of  Rachmel  v.  Clark,  205  Pa.  314,  where  the  owner  of  a  slate  fac- 
tory negligently  permitted  a  slab  of  slate  to  stand  on  the  pavement,  or 
on  ground  so  close  to  the  building  line  as  not  to  be  distinguished  from 


SECT.   IV.]  CLAEK    V.    WALLACE.  101 

the  pavement,  in  such  position  that  it  fell  on  a  boy  who  leaned  against 
it. 

The  judgment  is  reversed  and  judgment  is  now  entered  for  the  de- 
fendants.^ 


CLARK  V.  WALLACE. 
Supreme  Court  of  Colorado,  IQIL 

[Reported  51  Colo.  437.] 

MussER,  J.  This  writ  of  error  was  sued  out  to  review  a  judg- 
ment in  favor  of  Wallace,  who  was  defendant  below.  Clark  owned 
160  acres  of  standing  peas,  upon  which  he  was  feeding  and  fattening 
about  1200  sheep.  The  sheep  and  peas  were  in  charge  of  a  herder  in  the 
employ  of  Clark.  The  herder  lived  there  with  his  wife  and  two  chil- 
dren. On  a  certain  day,  Wallace,  who  had  a  ranch  nearby,  was  en- 
gaged in  dipping  sheep,  and  it  became  necessary  for  him  to  have  more 
help.  He  caused  Clark's  herder  to  be  asked  to  come  over  and  help  in 
dipping  the  sheep,  and  stated  that  he  would  pay  the  herder.  After 
a  time  the  herder  came  over.  While  he  was  at  Wallace's,  a  fire  started 
in  or  near  Clark's  field  of  peas.  It  was  evidently  started  by  the  herder's 
wife,  or  boy,  or  both.  There  was  a  high  wind  blowing,  and  the  fire 
soon  got  beyond  control  and  extended  to  the  field  of  peas  and  destroyed 
them. 

Clark  brought  an  action  to  recover  from  Wallace  the  damages  sus- 
tained by  him  on  account  of  the  loss  of  the  peas.  After  the  evidence 
was  in,  the  court  instructed  the  jury  to  render  a  verdict  in  favor  of 
Wallace,  which  was  done,  and,  upon  this  verdict,  judgment  was  entered 
against  Clark.  We  will  not  stop  to  consider  whether  or  not  Wallace 
would  be  liable  for  any  damage  that  might  have  resulted  to  Clark  in 
consequence  of  the  herder  being  induced  to  leave  his  work.  If  Wallace 
was  liable  for  any  damage  at  all,  which  we  do  not  determine,  it  was  only 
for  such  damage  as  was  "the  actual,  natural  and  approximate  result 
of  the  wrong  committed."—  Clifford  v.  D.,  S.  P.  &  P.  R.  R.,  9  Colo.  333. 
"The  rule  is  general  that  a  person  is  not  to  be  held  responsible  in 
damages  for  the  remote  consequences  of  his  act,  or  indeed  for  any  but 
those  which  are  proximate  or  natural." —  8  Am.  &  Eng.  Encyc.  of  Law, 
561.  In  D.  &  R.  G.  R.  R.  Co.  v.  Sipes,  26  Colo.  17,  it  is  said,  that 
proximate  cause  is  "that  cause  which,  in  natural  and  continued  se- 
quence, unbroken  by  any  efficient  intervening  cause,  produced  the 
result  complained  of,  and  without  which  that  result  would  not  have 
occurred";  or  "that  cause  which  immediately  precedes  and  directly 
produces  an  effect,  as  distinguished  from  a  remote,  mediate,  or  predis- 
posing  cause." 

1  See  Schwartz  r.  California  Gas  &  Electric  Corp.,  163  Cal.  308.  — Ed. 


102 


CLARK   V.    WALLACE. 


[chap.  IL 


Whethei*  an  act  was  the  proximate  cause  of  damage,  is  ordinarily 
a  question  for  the  jury,  but  when  the  facts  are  undisputed  and  are  sus- 
ceptible of  but  one  inference,  the  question  is  one  of  law  for  the  court. — 
D.  &  R.  G.  R.  R.  Co.  V.  Sipes,  supra.  The  only  damage  that  Clark 
sought  to  recover,  and  of  which  there  was  any  evidence,  was  that 
which  he  had  sustained  by  reason  of  the  burning  of  the  peas.  It  cannot 
be  said  that  the  natural  result  of  the  herder's  absence  was  that  some 
member  of  his  family  would  start  a  fire  and  that  the  wind  would  be  high 
and  would  fan  that  fire  so  that  it  would  extend  to  and  destroy  the  peas. 
It  cannot  be  said  that  the  herder's  absence  in  natural  and  continued 
sequence,  unbroken  by  any  efficient,  intervening  cause,  produced  the 
result  complained  of,  for  the  setting  out  of  the  fire  by  his  family  was 
not  a  natural  and  continued  sequence  of  the  herder's  absence,  but  it 
was  an  efficient,  intervening  cause,  coming  in  after  the  absence  of  the 
herder  and  could  not  have  been  anticipated  as  a  natural  result  of  the 
absence.  It  cannot  be  said  that,  if  the  herder  had  been  present,  the 
fire  would  not  have  been  started,  or  the  wind  not  have  been  high. 
The  cause  of  the  fire  was  not  the  absence  of  the  herder,  but  it  was 
plainly  the  action  of  his  family,  and  this  action  was  not  the  natural 
and  legitimate  sequence  of  his  absence.  The  fire  might  have  been 
started  just  as  well  with  him  present,  on  some  portion  of  the  160  acres 
of  peas,  and  the  wind  would  have  blown  just  as  hard. 

The  substantial  facts  in  this  case  are  undisputed,  but  if  the  evidence 
on  the  part  of  the  plaintiff  be  alone  considered,  there  is  but  one  infer- 
ence to  be  drawn  from  it  and  that  is,  that  the  absence  of  the  herder 
was  not  the  proximate  cause  of  the  destruction  of  the  peas.  The 
judgment  is,  therefore,  aflirmed. 

Judgment   affirmed. 


SECT.  I.]  STATE   V.   O'BRIEN.  '  -  103 


CHAPTER   III. 
LIABILITY   BASED   ON   PROXIMATE   CAUSATION. 


SECTION   I. 

Direct  Ajijjllcation  of  Force. 

STATE  V.  O'BRIEN. 
Supreme  Court  of  Iowa.     1890. 

[Reported  81  Iowa,  88.] 

The  defendant  was  indicted  for  tlie  crime  of  murder,  and  upon  a 
trial  was  found  guilty  of  manslaughter.  He  was  adjudged  to  be  im- 
prisoned for  two  years  at  hard  labor  in  the  penitentiary  at  Anamosa, 
and  to  pay  the  costs,  and  from  that  judgment  he  appeals.  (XiH't'v^r'^v 

Robinson,  J.^  It  is  suggested  that  the  verdict  is  not  supported  by 
the  evidence,  and  that  it  is  not  shown  that  the  death  of  Stocum  resulted 
from  injuries  inflicted  by  the  defendant.  The  evidence  shows  that 
decedent  had  not  been  in  good  health  for  several  months.  About 
three  weeks  before  the  assault  in  question,  he  consulted  a  ph^'sician, 
who  found  his  heart  in  a  diseased  condition,  and  treated  him  for  heart 
difficult}-.  He  improved  steadily  under  that  treatment  until  the  assault 
was  made.  If  his  testimony  at  the  preliminary  examination  and  his 
dying  declaration  were  correct,  he  was  choked  and  kicked  and  otherwise 
grossly  maltreated  by  defendant.  It  is  certain  that  he  was  greath' 
excited  by  the  encounter.  Immediately  after  it  occurred  he  applied  at 
a  house  in  the  vicinity  for  shelter,  stating  that  he  was  afraid  to  go  home 
on  account  of  defendant  and  the  Murphy  boys.  A  witness  says  of  his 
appearance  at  that  time:  "He  acted  just  scared  to  death.  His  face 
was  as  pale  as  death  ;  his  lips  were  swollen.  His  hat  was  torn  and 
had  mud  on  both  sides."  His  health  failed  rapidly  from  that  time.  A 
witness  who  saw  him  the  day  after  the  assault  describes  his  appearance 
and  condition  as  follows  :  "  I  discovered  he  was  in  pretty  bad  shape  ;  he 
was  pale,  haggard  ;  almost  impossible  for  him  to  breathe.  I  thought 
he  would  reel  right  over  on  the  stoop  there.  His  shoulder-blades 
worked  like  a  bellows.  His  voice  was  weak.  His  lips,  dark  blue." 
The  medical  testimony  shows  that  his  condition  and  failing  health  after 
the  assault,  and  his  death,  were  natural  and  probable  results  of  his 
physical  condition  on  the  night  of  July  15,  and  of  great  excitement 
and  physical  exertion. 

It  was  the  province  of  the  jury  to  determine  whether  the  wrong  of 
defendant  caused  or  contributed  to  decedent's  death.  The  fact  that  he 
was  afflicted  with  a  disease  which  might  have  proved  fatal  would  not 

"^  I'art  oiilv  of  the  opinion  is  Gjiven. 


104      ARMSTRONG   V.  MONTGOMERY    STREET   RAILWAY   CO.      [CHAP.  III. 

justify  the  wrongful  acts  of  defendant,  nor  constitute  a  defence  in  law. 
State  V.  Smith,  73  Iowa,  32.  Nor  would  ignorance  on  the  part  of 
defendant  of  the  diseased  phN'sical  condition  of  Stocum  excuse  his  acts. 
State  V.  Castello,  G2  Iowa,  404.  We  think  the  evidence  sutficient  to 
sustain  the  verdict,  and  find  no  error  prejudicial  to  defendant  of  which 
he  can  complain. 

The  Judgment  of  the  district  court  is  affirmed. 


ARMSTRONG    v.    MONTGOMERY    STREET    RAILWAY    CO. 

Supreme  Court  of  Al.\bama,  1899. 

[Reported  123  Ala.  233.] 

This  action  was  brought  by  the  appellant,  L.  J.  Armstrong,  as  ad- 
ministratrix of  the  estate  of  Charles  Armstrong,  deceased,  against  the 
appellee,  to  recover  damages  for  personal  injuries  alleged  to  have 
been  inflicted  on  plaintiff's  intestate,  by  reason  of  the  negligence  of  the 
defendant  or  its  employes,  and  which  resulted  in  the  death  of  plaintiff's 
intestate.^ 

McClellan,  C.  J.  As  to  the  intestate's  injuries  and  death,  the 
testimony,  as  given  by  the  physician  who  attended  him,  was  as  follows. 
i^f^  .  .  .  "He  had  no  wounds  except  those  on  the  head  and  hand,  and  no 

other  positive  e\'idences  of  hurt  on  his  body  as  far  as  I  could  see. 
Those  wounds  did  not  directly  produce  death.  They  produced  septice- 
mia which  caused  his  death.  By  septic  infection  is  meant  poisoning 
of  the  system  from  germs,  or  products  of  germs,  introduced  into  the 
blood  through  wounds,  or  other  sources;  it  is  a  paralysis  of  the  system 
due  to  the  presence  of  germs  or  particles  of  germs  in  the  system."  Upon 
this  evidence  it  is  sought  to  justify  the  affirmative  charge  for  the  defend- 
ant, which  was  given  by  the  trial  court;  the  contention  being  that,  if 
believed  by  the  jury,  it  show'ed  that  the  injury  sustained  by  the  intestate 
W'as  not  the  proximate  cause  of  his  death,  but  that  his  death  was  the  re- 
sult of  an  independent,  intervening  cause,  to  wut :  the  septicemia,  or  blood 
poisoning  which  set  in  or  began  to  infect  his  system  several  days  after 
the  injuries  were  received.    It  is  difficult  to  conceive  how  this  position 

[can  be  even  plausibly  supported.  It  is  clear  on  this  e\adence  that  in- 
testate's death  resulted  in  direct  line  and  sequence  of  causation  from 
the  injuries  he  received  in  the  fall  from  the  car.  So  far  from  there 
being  an  independent,  superseding  or  responsible  cause  of  death  other 
than  these  injuries,  there  is  absolutely  no  other  cause  shown  or  hinted 
at  in  this  evidence.  The  fall  produced  the  injuries;  the  injuries  pro- 
duced blood  poisoning,  and  the  blood  poisoning  produced  death. 
There  was  no  break  in  the  chain  of  causation  from  the  alleged  negligent 
act  to  the  death  of  intestate.     The  blood  poisoning  was  not  an  in- 

^  Several  points  v.ere  raised  in  this  appeal,  of  which  one  only  is  considered  here. — 
Ed. 


SECT.  I.]      GRAY   V.    CHICAGO    &   NOUTHWESTEKN    RAILWAY   CO.  105 

dependent  cause.  It  was  not  a  superseding  cause.  It  was  itself  a 
result,  or,  perhaps  more  accurately,  a  mere  development  of  the  inju- 
ries. It  is  not  an  important  consideration,  even  if  it  be  a  fact,  that 
blood  poisoning  is  not  a  usual  and  ordinary  result  or  development  of 
wounds  of  the  character  inflicted  upon  the  intestate.  It  is  not  of  con- 
sequence that  the  defendant  or  its  motorman  did  not  have  the  infection 
of  septicemia  in  contemplation  when  the  intestate  was  injured.  They 
did  not,  we  take  it,  have  in  contemplation  even  the  mashing  of  his  hand, 
and  if  they  did  they  would  be  guilty  much  beyond  the  charges  made 
by  this  complaint.  The  logical  rule  in  this  connection,  the  rule  of 
common  sense  and  human  experience  as  well,  (if  indeed  there  can  be  a 
difference  between  a  logical  doctrine  and  one  of  common  sense  and 
experience,  as  some  authorities  appear  to  hold),  is  that  a  person  guilty 
of  negligence  should  be  held  responsible  for  all  the  consequences  which 
a  prudent  and  experienced  man,  fully  acquainted  with  all  the  circum-« 
stances  which  in  fact  existed,  whether  they  could  have  been  ascer- 
tained by  reasonable  diligence  or  not,  would,  at  the  time  of  the  neg- 
ligent act,  have  thought  reasonably  possible  to  follow,  if  they  had 
occurred  to  his  mind. —  1  Sher.  &  Red.  Negligence,  §  29.  That  there 
was  a  reasonable  possibility  of  blood  poisoning  being  developed  or  pro- 
duced by  the  wounds  which  intestate  received  admits  of  no  controversy. 
That  blood  poisoning  did  result  from  the  wounds  is  to  like  degree  clear 
on  the  e\'idence;  and  confessedly  blood  poisoning  produced  death. 
Death  was,  therefore,  wnthin  the  range  of  responsibility  for  the  negli- 
gent act  which  inflicted  the  wounds;  and  instead  of  the  affirmative 
charge  for  defendant  being  justified  on  the  theory  that  the  evidence 
showed  that  death  did  not  result  from  the  injuries,  the  court  might  well 
have  instructed  the  jury  to  find  that  the  injuries  did  produce  the  death 
if  they  believed  the  evidence.* 


GRAY  V.  CHICAGO  &  NORTHWESTERN  RAILWAY  CO. 
Supreme  Court  of  Wisconsin,  1913. 

[Reported  153  Wis.  637.] 

WiNSLOW,  C.  J.^  It  appears  from  the  evidence  that  the  plaintiff 
received  severe  bruises,  wounds,  and  contusions  on  the  head,  body, 
and  hips  at  the  time  of  the  accident;  that  several  ribs  were  broken, 
and  that  he  was  in  bed  two  weeks;  that  his  left  arm  is  still  partially 
paralyzed ;  that  he  suffers  pain  in  the  left  arm  and  shoulder  practically 
all  the  time;  that  he  is  incapacitated  for  physical  labor;  is  afflicted  with 
occasional  spells  of  dizziness;  and  that  his  average  weight  is  reduced 

1  See  also  McGarrahan  v.  New  York,  N.  H.  &  H.  R.  R.,  171  Mass.  211,  50  N.  E., 
610;  Ginna  r.  Second  Ave.  R.  R.,  67  N.  Y.,  596.—  Ed. 
*  Part  of  the  opinion  only  is  given. —  Ed. 


Xuli 


'106      GRAY   V.  CHICAGO    &   NORTHWESTERN   RAILWAY   CO.      [CHAP.  III. 

from  about  160  pounds  to  about  130  pounds.  The  injury  was  suffered 
in  January,  1911.  He  was  examined  by  Dr.  Connell  of  Fond  du  Lac 
in  May,  1912,  and  it  was  then  found  for  the  first  time  by  examination 
of  his  sputum  that  he  had  incipient  consumption  or  tuberculosis  of  the 
lungs.  He  testified  himself  that  he  had  had  night  sweats  and  hemor- 
rhages. This  testimony  was  received  against  objection,  and  the 
court  refused  to  instruct  the  jury,  as  requested  by  the  defendant,  that 
they  could  not  find  that  the  accident  caused  the  pulmonary  tubercu- 
losis from  which  the  plaintiff  is  suffering.  The  defendant's  conten- 
tion is  that  there  is  no  sufficient  evidence  to  establish  any  causal 
relation  between  the  physical  injury  and  the  tuberculosis  which  existed 
more  than  a  year  later,  and  that  the  relationship  between  the  two  is 
purely  conjectural.  There  was  medical  testimony  to  the  effect  that 
an  injury  such  as  plaintiff  received  is  likely  to  induce  or  incite  tubercu- 
losis by  reducing  the  natural  resistance  of  the  patient,  lowering  his 
vitality,  and  piitting  him  in  a  condition  whereby  he  is  unable  to  with- 
stand infection.  If  this  testimony  were  the  only  testimony  tending 
to  show  a  causal  relation  between  the  injury  and  the  tuberculosis  we 
should  agree  with  the  defendant's  contention.  If  decreased  powers 
of  resistance  resulting  from  an  injury  are  to  be  considered  as  a  link  in 
the  chain  of  causation  between  the  injury  and  a  disease  developing 
years  afterward,  it  is  very  e\ddent  that  a  large,  if  not  an  almost  limit- 
less, field  is  opened  up  for  speculation  by  juries  in  a  region  where  there 
can  be  no  guide  and  no  probability  of  just  results. 

In  the  present  case,  however,  there  was  other  testimony  besides 
the  general  testimony  above  referred  to.  Dr.  E.  J.  Donohue,  who 
treated  the  plaintiff  for  his  injuries  from  the  day  of  the  accident  in 
January,  1911,  until  some  time  in  April  following  and  gave  him  a 
thorough  physical  examination,  including  an  examination  of  the  sputum, 
about  two  weeks  before  the  trial  in  July,  1912,  testified  directly  as 
follows : 

"Such  an  injury  as  the  one  he  sustained  would  cause  tuberculosis. 
It  would  decrease  the  resisting  forces,  tend  to  give  a  chance  for  infection, 
and  give  it  a  chance  to  loom  up.  In  other  words,  this  germ  that  is  dor- 
mant or  inactive  would  or  can  become  active.  In  my  opinion  the 
tubercular  condition  that  I  found  is  the  result  of  this  injury,  and  he  is 
permanently  disabled  from  manual  labor." 

Here  is  direct  testimony  by  the  physician  who  treated  the  plaintiff 
for  his  injuries  for  months,  and  presumably  knew  more  of  their  nature 
and  extent  than  any  one  else.  It  appears  that  he  had  known  the  plain- 
tiff for  years  and  had  treated  his  family.  He  must  have  been  in  a 
favorable  position  to  judge  of  the  actual  as  well  as  the  probable  effects 
of  such  an  injury  upon  the  plaintiff.  He  testified  positively  that  in 
his  opinion  the  tubercular  condition  was  the  result  of  the  injury  received. 
We  are  unable  to  say  that  this  testimony  is  beyond  the  proper  scope 


SECT.  I.]         McCAHILL    V.   NEW    YORK   TRANSPORTATION   CO.  107 

of  expert  medical  testimony,  and  unless  we  can  say  that,  it  seems 
certain  that  we  cannot  hold  that  a  finding  that  the  tubercular  condi- 
tion was  caused  by  the  accident  is  purely  conjectural.^ 


McCAHILL  V.  NEW  YORK  TRANSPORTATION   CO. 
Court  of  Appeals  of  New  York,  1911. 

[Reported  201  .V.   Y.  221.] 

HiscoCK,  J.  One  of  the  appellant's  taxicabs  struck  respondent's 
intestate  on  Broadway,  in  the  city  of  New  York,  in  the  night  time 
under  circumstances  which,  as  detailed  by  the  most  favorable  evidence, 
permitted  the  jury  to  find  that  the  former  was  guilty  of  negligence 
and  the  latter  free  from  contributory  negligence.  As  a  result  of  the 
accident  the  intestate  was  thrown  about  twenty  feet,  his  thigh  broken 
and  his  knee  injured.  He  immediately  became  unconscious  and  was 
shortly  removed  to  a  hospital,  where  he  died  on  the  second  day  there- 
after of  delirium  tremens.  A  physician  testified  that  the  patient  when 
brought  to  the  hospital  "was  unconscious  or  irrational  rather  than 
unconscious.  .  .  .  He  rapidly  developed  delirium  tremens.  ...  I 
should  say  with  reasonable  certainty  the  injury  precipitated  his  attack 
of  delirium  tremens,  and  understand  I  mean  precipitated,  not  induced"; 
and,  again,  that  in  his  opinion  "the  injury  to  the  leg  and  the  knee 
hurried  up  the  delirium  tremens."  He  also  stated:  "He  might  have 
had  it  (delirium  tremens)  anyway.  Nobody  can  tell  that."  Of  course, 
it  is  undisputed  that  the  injuries  could  not  have  led  to  delirium  tre- 
mens except  for  the  preexisting  alcoholic  condition  of  the  intestate, 
and  under  these  circumstances  the  debatable  question  in  the  case  has 
been  whether  appellant's  negligence  was,  legally  speaking,  the  proxi- 
mate cause  of  intestate's  death.  It  seems  to  me  that  it  was,  and  that 
the  judgment  should  be  affirmed. 

In  determining  this  question  it  will  be  unnecessary  to  quote  defini- 
tions of  proximate  cause  which  might  be  useful  in  testing  an  obscure, 
involved  or  apparently  distant  relationship  between  an  act  and  its 
alleged  results,  for  the  relationship  here  is  perfectly  simple  and  ob\'ious. 
The  appellant's  automobile  struck  and  injured  the  traveler;  the  injuries 
precipitated,  hastened  and  developed  delirium  tremens,  and  these 
caused  death.  There  can  be  no  doubt  that  the  negligent  act  directly 
set  in  motion  the  sequence  of  events  which  caused  death  at  the  time  it 
occurred.  Closer  analysis  shows  that  the  real  proposition  urged  by  the 
appellant  is  that  it  should  not  be  held  liable  for  the  results  which  fol- 
lowed its  negligence,  either,  first,  because  those  results  would  not 
have  occurred  if  intestate  had  been  in  a  normal  condition,  or,  secondly, 

.  iSee  also  East  Tenn.  Tel.  Co.  v.  Jeffries,  153  Ky.  133,  154  S.  W.  1112;  Reg.  v. 
Greenwood,  7  Cox  C.  C.  404. —  Ed. 


108  MCCAHILL    V.    NEW   YORK    TRANSPORTATION   CO.      [CHAP.  III. 

because  his  alcoholism  might  have  caused  delirium  tremens  and 
death  at  a  later  date  even  though  appellant  had  not  injured  him. 
This  proposition  cannot  be  maintained  in  either  of  its  branches  which 
are  somewhat  akin. 

The  principle  has  become  familiar  in  many  phases  that  a  negligent 
person  is  responsible  for  the  direct  effects  of  his  acts,  even  if  more 
serious,  in  cases  of  the  sick  and  infirm  as  well  as  in  those  of  healthy 
and  robust  people,  and  its  application  to  the  present  case  is  not  made 
less  certain  because  the  facts  are  somewhat  unusual  and  the  intes- 
tate's prior  disorder  of  a  discreditable  character.  (Tice  v.  Munn, 
94  N.  Y.  621;  Crank  v.  Forty-second  Street,  M.  &  St.  N.  Ave.  Ry. 
Co.,  53  Hun,  425;  affd.,  127  N.  Y.  648;  Allison  v.  C.  &  N.  W.  R.  Co., 
42  Iowa,  274;  Owens  v.  K.  C,  S.  J.  &  C.  B.  Ry.  Co.,  95  Mo.  169,  182.) 
The  principle  is  also  true  although  less  familiar,  that  one  who  has  neg- 
ligently forwarded  a  diseased  condition  and  thereby  hastened  and  pre- 
maturely caused  death  cannot  escape  responsibility  even  though  the 
disease  probably  would  have  resulted  in  death  at  a  later  time  without 
his  agency.  It  is  easily  seen  that  the  probability  of  later  death  from 
existing  causes  for  which  a  defendant  was  not  responsible  would  prob- 
ably be  an  important  element  in  fixing  damages,  but  it  is  not  a  defense. 

Turner  v.  Nassau  Electric  R.  R.  Co.  (41  App.  Div.  213)  was  a  case 
singularly  similar  to  this  one  except  that  there  the  physician  ventured 
the  opinion  that  delirium  tremens  would  not  have  ensued  except  for 
the  accident  resulting  from  defendant's  negligence,  whereas  in  the 
present  case  there  is  no  opinion  on  this  point.  I  think,  however, 
that  no  presumption  can  be  indulged  in  for  the  benefit  of  the  present 
appellant  that  delirium  tremens  would  have  occurred  ^athout  its 
agency.  In  that  case  a  judgment  in  favor  of  the  intestate's  repre- 
sentative was  sustained  on  the  ground  that  the  accident  precipitated 
the  delirium  tremens  which  resulted  in  the  death. 

In  Louisville  &  N.  R.  R.  Co.  v.  Jones  (83  Ala.  376,  382)  it  was  said 
that  if  an  intestate  "had  pneumonia  or  incipient  pneumonia  at  the 
time  she  received  the  injury,  and  it  could  be  known  that  she  would 
ultimately  die  of  that  disease,  this  would  not  necessarily,  and  as  a 
matter  of  law,  relieve  the  railroad  of  all  responsibility.  If  the  injury 
was  caused  by  the  negligence  of  the  railroad  company  .  .  .  and  if 
it  contributed  and  hastened  her  death,  then  the  corporation  would 
not  be  guiltless." 

In  Jefferson\alle,  IVI.  &  I.  R.  R.  Co.  v.  Riley  (39  Ind.  568)  it  was 
said  with  reference  to  a  request  to  charge  made  by  the  defendant  and 
denied:  "If  it  was  intended  to  have  the  court  say  to  the  jury,  that 
when  a  person  has  a  tendency  to  insanity  or  disease,  and  receives  an 
injury  which  produces  death,  but  which  would  not  have  produced 
death  in  a  well  person  (the  plaintiff  cannot  recover)  the  charge  was 
rightly  refused.  If  death  was  the  result  of  the  preexisting  circum- 
stances, and  the  injury  had  nothing  to  do  with  producing  or  accelerat- 


SECT.  I.]       CLIFFOED   V.   DENVER,    SOUTH    PARK    &   PACIFIC    R,  E.       109 

ing  the  result,  then  the  injury  would  not  be  the  cause  of  death."  (See, 
also,  Owens  v.  K.  C,  S.  J.  &  C.  B.  Ry.  Co.,  95  Mo.  169,  182;  Foley 
V.  Pioneer,  M.  &  M.  Co.,  144  Ala.  178,  183.) 

The  responsibility  of  a  person  accelerating  the  death  of  another 
already  suffering  from  a  disorder  which  at  a  later  period  of  itself  might 
have  caused  death,  has  been  considered  in  criminal  cases  and  deter- 
mined in  a  manner  which  is  adverse  to  the  contention  of  the  appellant 
here. 

In  Hale's  Pleas  of  the  Crown  (p.  428)  the  rule  is  laid  down:  "If 
a  man  be  sick  of  some  such  disease,  which  possibly  by  course  of  nature 
would  end  his  life  in  half  a  year,  and  another  gives  him  a  wound  or 
hurt  which  hastens  his  end  by  irritating  and  provoking  the  disease  to 
operate  more  violently  or  speedily,  this  hastening  of  his  death  sooner 
than  it  would  have  been  is  homicide  or  murder,  as  the  case  happens,  in 
him  that  gives  the  wound  or  hurt,  for  he  doth  not  die  simply  ex  visita- 
iione  Dei,  but  the  hurt  that  he  receives  hastens  it,  and  an  offender  of 
such  a  nature  shall  not  apportion  his  own  wrong."  (See,  also.  Bishop 
on  Criminal  Law  [oth  ed.],  §  637.) 

In  Commonwealth  v.  Fox  (73  Mass.  585)  the  court  stated  the  rule 
in  connection  with  an  indictment  charging  murder:  "If  the  jury  are 
satisfied  on  the  e\adence,  that  an  assault  and  battery  was  committed 
on  the  deceased  by  the  prisoner  .  .  .  and  that  thereby  the  death  of 
his  wife  was  hastened,  so  that  it  took  place  sooner  by  reason  of  the 
assault  and  battery  than  it  would  have  occurred  in  consequence  of 
her  sickness  alone,"  the  indictment  might  be  sustained. 

In  State  v.  Smith  (73  Iowa,  32,  41)  the  court  in  a  case  of  alleged 
murder  expressed  its  opinion  and  decided  as  follows :  "  It  surely  ought 
not  to  be  the  law  that  because  a  person  is  afflicted  wdth  a  mortal  mal- 
ady, from  which  he  must  soon  die,  whether  his  ailment  be  caused  by 
natural  or  artificial  causes,  another  may  be  excused  for  acts  of  violence 
which  hasten  or  contribute  to  or  cause  death  sooner  than  it  would  other- 
wise occur."  (See,  also.  Rex  v.  Martin,  5  C.  &  P.  128,  130;  Regina 
V.  Plummer,  1  C.  &  K.  600,  607.) 

I  think  the  judgment  should  be  aflirmed,  wdth  costs. 


CLIFFORD  V.  DENVER,  SOUTH  PARK  &  PACIFIC  RAILROAD. 

Supreme  Court  of  Colorado,  1886. 

[Reported  9  Colo.  333.] 

Helm,  J.  To  sustain  the  judgment  of  the  district  court,  counsel 
for  defendant  in  error  urge  a  single  proposition,  viz.,  that  the  amended 
complaint  does  not  state  facts  sufficient  to  constitute  a  cause  of  action. 
The  wording  of  this  complaint  might  have  been  better,  but  we  do  not 
deem  it  fatally  obnoxious  to  the  foregoing  objection.  The  action  is 
based  upon  defendant's  negligence,  and  the  rules  of  pleading  appli- 


110     CLIFFORD   V.    DENVER,    SOUTH    PARK    &   PACIFIC    R.  R.     [CHAP.  III. 

cable  did  not  require  a  statement  of  the  exact  number,  quality,  weight, 
and  condition  of  the  blankets  or  other  covering  provided.  The  aver- 
ment that  plaintiff  "  was  compelled  to  sleep  on  the  cold,  wet  and  frozen 
ground,  without  anything  under  him  except  damp  branches  of  pine  or 
spruce  trees,  and  without  sufficient  blankets  or  bedclothes  to  cover  him, 
and  protect  him  from  the  cold,  whereby  plaintiff  was  taken  danger- 
ously sick  from  such  exposure,  ..."  is,  in  our  judgment,  the  allega- 
tion of  a  material  ultimate  fact.  It  is  considerably  strengthened  by 
other  averments  of  the  complaint.  But,  from  the  language  of  this 
allegation  alone,  it  appears  that  no  bunk  or  bed  of  any  kind  was  fur- 
nished ;  while  under  that  part  of  it  which  relates  to  covering,  evidence 
of  such  primary  facts  as  the  number  and  quality  of  the  blankets  pro- 
vided would  be  admissible. 

It  was  not  necessary  to  allege  plaintiff's  want  of  knowledge  concern- 
ing the  kind  of  weather  he  encountered  at  the  time  of  contracting  the 
illness.  Under  the  circumstances  disclosed,  this  became  an  immaterial 
matter.  There  was  here  no  acquiescence  in  the  alleged  wrongful 
omission.  When  plaintiff  reached  the  camp  on  Alpine  Pass,  he,  of 
course,  became  aware  of  the  condition  of  the  weather.  He  then,  also, 
for  the  first  time,  learned  the  character  of  the  accommodations  furnished. 
But  the  complaint  shows  that  immediately  upon  obtaining  this  infor- 
mation, he  protested,  and  would  have  quit  work,  had  not  defendant 
promised  to  have  the  supply  of  beds  and  bedding  at  once  made  sufficient. 
There  was  thus  a  clear  admission  by  defendant  that  the  provision 
made  in  this  direction  was  inadequate.  But  notwithstanding  this 
admission,  and"  defendant's  duty  in  the  premises,  the  promise  which 
induced  plaintiff  to  remain  was  not  kept,  nor  was  anything  else  done  to 
increase  his  protection  from  the  dangers  naturally  incident  to  the  ex- 
posure. 

But  it  is  asserted  that  the  damages  or  injuries  referred  to  in  the  com- 
plaint are  too  remote.  We  accept  the  rule  on  this  subject  as  stated  by 
the  authorities  cited.  The  damages  suffered  must  be  "the  actual, 
natural  and  approximate  result  of  the  wrong  committed."  Streeter 
V.  Marshall,  4  Colo.  535.  "They  must  be  the  legitimate  sequence  of 
the  thing  amiss."     Cooley,  Torts,  68. 

That  sickness  and  paralysis  may  actually,  naturally  and  proxi- 
mately result,  and  be  a  legitimate  sequence,  from  sleeping  several  con- 
secutive nights  at  the  summit  of  Alpine  Pass,  where  "snow-storms 
prevailed  almost  continuously,"  on  wet  and  frozen  ground,  with 
nothing  but  damp  pine  or  spruce  branches  for  a  bed,  and  insufficient 
blankets  or  other  covering,  seems  to  be  a  reasonable  proposition. 
We  certainly  cannot,  purely  as  a  matter  of  law,  hold  the  contrary. 

Counsel's  suggestion  that  people  frequently  incur  such  exposure, 
and  that  neither  these  nor  any  other  serious  consequences  follow,  may  be 
correct.  But  this  fact,  if  it  be  a  fact,  is  far  from  decisive  as  to  the  ques- 
tion of  liability  in  cases  like  the  one  at  bar.    The  principle  above  stated 


SECT.  I.]      LYNN    GAS    &   ELECTRIC   CO,   V.   MERIDEN   INS.    CO.  Ill 

does  not  declare  that  the  damage  or  injury  mtcst  have  resulted,  or  even 
that  it  must  have  been  anticipated,  in  the  particular  case  under  con- 
sideration. On  the  contrary,  it  has  been  well  said  "that  the  conse- 
quences of  negligence  are  almost  invariably  surprises."  The  expres- 
sion "reasonable  expectation,"  frequently  used  in  this  connection,  is 
said  to  mean  "an  expectation  that  some  such  disaster  as  that  under 
investigation  will  occur  on  the  long  run  from  a  series  of  such  negli- 
gences as  those  with  which  the  defendant  is  charged."  Whart.  Neg. 
§§  77,  78,  and  cases  cited. 

The  foregoing  suggestions  answer  all  of  the  points  specifically 
made  in  argument  against  the  complaint  by  counsel  for  defendant  in 
error,  and  we  discover  no  other  objection  thereto  which  is  fatal.  The 
judgment  of  the  district  court  is  accordingly  reversed,  and  the  cause 

remanded.  Reversed. 

-* » >- 

REGINA  V.  NORRIS. 
Worcester  Assizes,  1840, 

[Reported  9  Car.  &  P.  241.] 

The  prisoners  were  indicted  on  the  7  &  8  Geo.  IV.  c.  30,  s.  7,  for  felo- 
niously, unlawfully,  and  maliciously  damaging,  with  intent  to  destroy 
it,  a  certain  steam  engine  used  in  the  draining  and  working  of  a  mine; 
2d  count,  for  damaging  the  engine  with  intent  to  render  it  useless. 

It  appeared  that  the  steam  engine  was  used  to  bring  up  coals  from 
one  shaft  of  the  mine,  and  water  from  another,  and  that  it  was  stopped 
and  locked  up  on  the  evening  of  the  3d  of  March,  and  that  the  prisoners 
on  that  night  got  into  the  engine  house  and  set  the  engine  going,  and 
from  its  having  no  machinery  attached  to  it,  the  engine  worked  with 
greater  velocity,  and  the  wheels  were  some  of  them  thrown  out  of  cog, 
so  that  the  engine  was  damaged  to  the  amount  of  £10,  and  would*  have 
been  injured  to  a  much  greater  extent,  if  the  mischief  had  not  been 
discovered  and  the  engine  stopped. 

GuRNEY,  B.,  left  it  to  the  jury  to  say,  whether  the  intent  of  the 
prisoners  was  to  destroy  the  engine,  or  to  render  it  useless;  and  held, 
that,  if  the  prisoners  had  either  of  those  intents,  the  case  came  within 
the  provisions  of  the  statute. 

The  jury  found  the  prisoners  guilty. 


LYNN  GAS  &  ELECTRIC  CO.  v.  MERIDEN  INSURANCE  CO. 
Supreme  Judicial  Court  of  Massachusetts,  1893, 

[Reported  158  Mass.  570.] 

Knowlton,  J.  The  only  exception  relied  on  by  the  defendants  in 
these  cases  is  that  relating  to  the  claim  for  damage  to  the  machinery 
used  in  generating  electricity  and  to  the  building  from  a  disruption  of 


^( 


112         LYNN    GAS   <fe   ELECTRIC   CO.   V.    MERIDEN   INS.   CO.       [CHAP.   III. 

the  machinery.  This  machinery  was  in  a  part  of  the  building  remote 
from  the  fire,  and  none  of  it  was  bm-ned.  In  his  charge  to  the  jury 
the  judge  stated  the  theory  of  the  plaintiff  as  follows:  "The  plaintiff 
says  the  position  of  the  lightning  arresters  in  the  vicinity  of  the  fire 
was  such  that  by  reason  of  the  fire  in  the  tower  a  connection  was  made 
between  them  called  a  short  circuit;  that  the  short  circuit  resulted 
in  keeping  back  or  in  bringing  into  the  dynamo  below  an  increase  of 
electric  current  that  made  it  more  difficult  for  this  armature  to  revolve 
than  before,  and  caused  a  higher  power  to  be  exerted  upon  it,  or  at 
least  caused  greater  resistance  to  the  machinery;  that  this  resistance 
was  transmitted  to  the  pulley  by  which  this  armature  was  run,  through 
the  belt;  that  that  shock  destroyed  that  pulley;  that  by  the  destruc- 
tion of  that  pulley  the  main  shaft  was  disturbed  and  the  succeeding 
pulleys  up  to  the  jack-pulley  were  ruptured;  that  by  reason  of  pieces 
flying  from  the  jack-pulley,  or  from  som.e  other  cause,  the  fly-wheel  of 
the  engine  was  destroyed,  the  governor  broken,  and  everything  crushed; 
—  in  a  word,  that  the  short  circuit  in  the  tower  by  reason  of  the  fire 
caused  an  extra  strain  upon  the  belt  through  the  action  of  electricity, 
and  that  caused  the  damage."  The  plaintiff  contended  that  the  short 
circuit  was  produced  by  the  fire,  either  by  means  of  heat  on  the  horns 
of  the  lightning  arresters,  or  by  a  flame  acting  as  a  conductor  between 
the  two  horns,  or  in  some  other  way.  The  jury  found  that  the  plain- 
tiff's theory  of  the  cause  of  the  damage  was  correct,  and  the  question 
is  whether  the  judge  was  right  in  ruling  that  an  injury  to  the  machinery 
caused  in  this  way  was  a  "loss  or  damage  by  fire,"  within  the  meaning 
of  the  policy.  (X^^'s ,     \j.J.  ; 

The  subject  matter  of  the  insurance  was  the  building,  machinery, 
dynamos,  and  other  electrical  fixtures,  besides  tools,  furniture,  and 
supplies  used  in  the  business  of  furnishing  electricity  for  electric  lighting. 
The  defendants,  when  they  made  their  contracts,  understood  that  the 
building  contained  a  large  quantity  of  electrical  machinery,  and  that 
electricity  would  be  transmitted  from  the  dynamos,  and  would  be  a 
powerful  force  in  and  about  the  building.  They  must  be  presumed  to 
have  contemplated  such  effects  as  fire  might  naturally  produce  in 
connection  with  machinery  used  in  generating  and  transmitting  strong 
currents  of  electricity. 

The  subject  involves  a  consideration  of  the  causes  to  which  an  effect 
should  be  ascribed  when  several  conditions,  agencies,  or  authors 
contribute  to  produce  an  effect.  The  defendants  contend  that  the 
application  of  the  principle  which  is  expressed  by  the  maxim.  In 
jure  71011  remota  causa  sed  proxima  spedatur,  relieves  them  from  liability 
in  these  cases.  It  has  often  been  necessary  to  determine,  in  trials  in 
court,  Avhat  is  to  be  deemed  the  responsible  cause  which  furnishes 
a  foundation  for  a  claim  v/hen  several  agencies  and  conditions  have  a 
share  in  causing  damage,  and  the  best  rule  that  can  be  formulated  is 
often  difficult  of  application.     When  it  is  said  that  the  cause  to  be 


SECT.    I.]      LYNN    GAS    &    ELFXTEIC   CO.    V.   MERIDEN   INS.    CO.  113 

sought  is  the  direct  and  proximate  cause,  it  is  not  meant  that  the 
cause  or  agency  which  is  nearest  in  time  or  place  to  the  result  is  nec- 
essarily to  be  chosen.  Freeman  v.  Mercantile  Accident  Association, 
156  Mass.  351.  The  active  efficient  cause  that  sets  in  motion  a  train 
of  events  which  brings  about  a  result  without  the  intervention  of  any 
force  started  and  working  actively  from  a  new  and  independent  source 
is  the  direct  and  proximate  cause  referred  to  in  the  cases.  McDonald 
V.  Snelling,  14  Allen,  290;  Perley  v.  Eastern  Railroad,  98  Mass.  414, 
419;  Gibney  v.  State,  137  N.  Y.  529.  In  Milwaukee  &  St.  Paul 
Railway  v.  Kellogg,  94  U.  S.  469,  474,  Mr.  Justice  Strong,  who  also 
wrote  the  opinions  in  Insurance  Co.  v.  Transportation  Co.,  12  Wall. 
194,  and  in  Western  Massachusetts  Ins.  Co.  v.  Transportation  Co.,  12 
Wall.  201,  which  are  much  relied  on  by  the  defendants,  used  the  fol- 
lowing language  in  the  opinion  of  the  court :  "  The  primary  cause  may 
be  the  proximate  cause  of  a  disaster,  though  it  may  operate  through 
successive  instruments,  as  an  article  at  the  end  of  a  chain  may  be 
moved  by  a  force  applied  to  the  other  end,  that  force  being  the  proxi- 
mate cause  of  the  movement,  or  as  in  the  oft-cited  case  of  the  squib 
thrown  in  the  market-place.  2  Bl.  Rep.  892.  The  question  always  is. 
Was  there  an  unbroken  connection  between  the  wrongful  act  and 
the  injury,  a  continuous  operation?  Did  the  facts  constitute  a  contin- 
uous succession  of  events,  so  linked  together  as  to  make  a  natural  whole, 
or  was  there  some  new  and  independent  cause  intervening  between 
the  wrong  and  the  injury?" 

If  this  were  an  action  against  one  who  negligently  set  the  fire  in 
the  tower,  and  thus  caused  the  injury  to  the  machinery,  it  is  clear,  on 
the  theory  of  the  plaintiff,  that  the  negligent  act  of  setting  the  fire 
would  be  deemed  the  active  efficient  cause  of  the  disruption  of  the  ma- 
chinery and  the  consequent  injury  to  the  building.  It  remains  to  in- 
quire whether  there  is  a  different  rule  in  an  action  on  a  policy  of  fire 
insurance. 

Under  our  statute  creating  a  liability  for  damages  received  from 
defects  in  highways,  it  is  held  that  the  general  rule  is  so  far  modified 
that  there  can  be  no  recovery  unless  the  defect  is  the  sole  cause  of  the 
accident;  but  this  doctrine  rests  on  the  construction  of  the  statute. 
Tisdale  v.  Norton,  8  Met.  388;  Marble  v.  Worcester,  4  Gray,  395;  Jenks 
V.  Wilbraham,  11  Gray,  142;  McDonald  v.  SneUing,  14  Allen,  290; 
Babson  v.  Rockport,  101  Mass.  93. 

In  suits  brought  on  policies  of  fire  insurance,  it  is  held  that  the 
intention  of  the  defendants  must  have  been  to  insure  against  losses 
where  the  cause  insured  against  was  a  means  or  agency  in  causing 
the  loss,  even  though  it  was  entirely  due  to  some  other  active,  effic- 
ient cause  which  made  use  of  it,  or  set  it  in  motion,  if  the  original 
efficient  cause  was  not  itself  made  a  subject  of  separate  insurance  in  the 
contract  1:)etween  the  parties.  For  instance,  where  the  negligent  act  of 
the  insured,  or  of  anybody  else,  causes  a  fire,  and  so  causes  damage, 


114         LYNN   GAS    &   ELECTEIC    CO.    V.    MERIDEN    INS.   CO.      [CHAP.  III. 

although  the  neghgent  act  is  the  direct,  proximate  cause  of  the  damage, 
through  the  fire,  which  was  the  passive  agency,  the  insurer  is  held  liable 
for  a  loss  caused  by  the  fire.  Johnson  v.  Berkshire  Ins.  Co.,  4  Allen, 
388;  Walker  r.  Maitland,  5  B.  &  Aid.  171;  ^Yaters  v.  Merchants' 
Louisville  Ins.  Co.,  11  Pet.  213;  Peters  t).  Warren  Ins.  Co.,  14  Pet.  99; 
General  Ins.  Co.  v.  Sherwood,  14  How.  351;  Insurance  Co.  v.  Tweed, 
7  Wall.  44.  This  is  the  only  particular  in  which  the  rule  in  regard  to 
remote  and  proximate  causes  is  applied  differently  in  actions  on  fire  in- 
surance policies  from  the  application  of  it  in  other  actions.  A  fail- 
ure sometimes  to  recognize  this  rule  as  standing  on  independent  grounds 
and  established  to  carry  out  the  intention  of  the  parties  to  contracts 
of  insurance,  has  led  to  confusion  of  statement  in  some  of  the  cases. 
The  difficulty  in  applying  the  general  rule  in  complicated  cases  has 
made  the  interpretation  of  some  of  the  decisions  doubtful;  but  on 
principle,  and  by  the  weight  of  authority  in  many  well-considered 
cases,  we  think  it  clear  that,  apart  from  the  single  exception  above 
stated,  the  question,  What  is  a  cause  which  creates  a  liability?  is  to 
be  determined  in  the  same  way  in  actions  on  policies  of  fire  insurance 
as  in  other  actions.  Scripture  v.  Lowell  Ins.  Co.,  10  Cush.  356;  New 
York  &  Boston  Despatch  Express  Co.  v.  Traders  &  Mechanics'  Ins. 
Co.,  132  Mass.  377;  St.  John  v.  American  Ins.  Co.,  1  Kernan,  516; 
General  Ins.  Co.  v.  Sherwood,  14  How.  351;  Insurance  Co.  v.  Tweed, 
7  Wall.  44;  Waters  v.  Merchants'  Louisville  Ins.  Co.,  11  Pet.  213, 
225;  Li\'ie  v.  Janson,  12  East,  648;  lonides  v.  Universal  Ins.  Co., 
14  C.  B.  (N.  S.)  259;  Transatlantic  Ins.  Co.  v.  Dorsey,  56  Md.  70; 
United  Ins.  Co.  v.  Foote,  22  Ohio  St.  340. 
P"      In  the  present  case,  the  electricity  was  one  of  the  forces  of  nature, 

—  a  passive  agent  working  under  natural  laws,— whose  existence  was 
known  when  the  insurance  policies  were  issued.  L'pon  the  theory 
adopted  by  the  jury,  the  fire  worked  through  agencies  in  the  building, 
the  atmosphere,  the  metallic  machinery,  electricity,  and  other  things; 
and  working  precisely  as  the  defendants  would  have  expected  it  to  work 
if  they  had  thoroughly  understood  the  situation  and  the  laws  appli- 
cable to  the  existing  conditions,  it  put  a  great  strain  on  the  machinery 
and  did  great  damage.  No  new  cause  acting  from  an  independent 
source  intervened.  The  fire  was  the  direct  and  proximate  cause  of  the 
damage  according  to  the  meaning  of  the  words  "  direct  and  proximate 
cause,"  as  interpreted  by  the  best  authorities.  The  instructions  to  the 
jury  were  full,  clear,  and  correct,  and  the  defendants'  requests  for 
instructions  were  rightly  refused. 

Exceptions  overruled} 

1  See  also  Phillips  c.  New  York  C.  &  H.  R.  R.  R.,  127  N.  Y.  657,  27  N.  E.  978. 

—  Ed. 


SECT.   I.]  BUNTING   V.    HOGSETT.  115 


BUNTING  V.   HOGSETT. 
Supreme  Court  of  Pennsylvania,  1891. 

[Reported  139  Pa.  363.] 

On  October  13,  1883,  Mr.  and  Mrs.  Bunting  were  passengers  upon 
a  train  proceeding  upon  the  Southwest  Pennsylvania  railroad  toward 
Uniontown.  That  railroad  was  crossed,  at  two  points,  near  Lemont 
furnace,  in  Fayette  county,  by  a  private  coke  railroad,  owned  and 
operated  by  the  defendant.  After  making  the  first  crossing,  the  coke 
road  described  a  semicircle  and  then  re-crossed  the  track  of  the  rail- 
road company,  the  two  intersections  being  646  feet  apart.  When  the 
train  in  which  the  plaintiffs  were  traveling  approached  the  first  cross- 
ing, a  "dinkey  engine"  of  the  defendant,  pushing  a  coke  car,  was  upon 
the  semicircular  part  of  the  defendant's  track,  backing  toward  the  same 
crossing.  The  engineer  of  the  dinkey  engine  was  inexperienced,  and 
had  no  watch  or  time  card.  The  passenger  train  was  hidden  from  his 
view  by  a  heap  of  slag  and  cinder,  dumped  upon  the  defendant's  prop- 
erty, until  it  arrived  at  the  crossing,  and  until  then  the  defendant's 
engineer  was  ignorant  of  its  approach.  The  engineer  of  the  passen- 
ger train  did  not  see  the  dinkey  engine  until  the  same  time.  The 
testimony  was  conflicting  as  to  whether  the  whistle  of  the  passenger 
engine  was  sounded  before  it  reached  the  crossing,  and  also  as  to 
whether  the  defendant's  engineer  whistled. 

Upon  seeing  the  passenger  train,  the  defendant's  engineer  reversed 
his  engine,  but  was  unable  to  stop  it,  and  the  coke  car  pushed  by  it 
collided  with  the  platform  of  the  rear  coach  of  the  passenger  train. 
There  was  testimony  tending  to  show  that  this  collision  caused  the 
rear  truck  of  the  coach  to  leave  the  rails,  though  this  fact  was  in  dis- 
pute. It  was  undisputed,  however,  that  this  truck  was  on  the  rails 
when  the  train  was  afterwards  stopped.  When  the  collision  occurred, 
a  brakeman  on  the  passenger  train  pulled  the  cord  operating  the  air 
brakes  of  the  train,  and  the  engineer  put  on  the  air  from  the  engine. 
The  result  was  to  bring  the  train  to  a  full  stop,  on  the  second  crossing 
of  the  defendant's  road.  There  was  testimony  tending  to  show  that 
the  use  of  the  automatic  cord  rendered  the  release  of  the  train  from  the 
brakes  a  matter  of  greater  difficulty,  requiring  more  time  than  if  the 
engineer  alone  had  operated  the  brakes. 

Before  the  occurrence  of  the  collision,  the  defendant's  engineer  and 
fireman,  on  the  coke  road,  being  in  fear  of  their  lives,  jumped  from 
the  dinkey  engine,  the  engineer  having  first  shut  off  steam.  The 
throttle  of  that  engine  became  re-opened,  presumably  as  the  result 
of  the  jarring  incident  to  the  collision,  and  the  engine  started  back 
along  the  semicircular  piece  of  track  toward  the  second  crossing.     The 


116  BUNTING  V.   HOGSETT.  [CHAP.  III. 

defendant's  engineer,  being  unable  to  get  upon  his  engine  again, 
motioned  to  the  engineer  of  the  passenger  train,  which  had  stopped  and 
was  standing  upon  that  crossing,  to  pull  away  from  it;  but  this  the 
latter  was  unable  to  do  in  time,  and  the  dinkey  engine,  running  round 
the  arc  formed  by  defendant's  track,  struck  the  middle  coach  of  the 
passenger  train  in  which  the  plaintiffs  were  sitting.  In  this  second 
collision,  the  plaintiffs  received  the  injuries  for  which  their  respective 
actions  were  brought.^ 

Clark,  J.  The  defendant,  Robert  Hogsett,  is  the  owner  of  the 
Lemont  furnace,  on  the  line  of  the  Southwest  Pennsylvania  railroad, 
and  the  plaintiff,  who,  on  the  thirteenth  of  October,  1883,  was  a  passen- 
ger upon  one  of  the  railroad  trains,  brings  this  suit  to  recover  damages 
for  a  personal  injury,  received  through  the  alleged  negligence  of  the 
defendant's  employees.  It  appears  that  a  railroad  track  was  used  in 
connection  with  the  furnace,  and  that  what  is  called  a  dinkey  engine 
was  operated  thereon,  in  fumisliing  supplies  of  stock,  ore,  and  coke  to 
the  furnace.  The  furnace  track,  in  running  out  from  the  furnace  to  the 
coke  ovens,  forms,  as  it  were,  the  arc  of  a  circle,  and  the  railroad  track, 
crossing  the  furnace  track  twice,  subtends  the  arc  as  a  chord. 

The  collision  which  occurred  at  the  first  crossing,  was  caused  by  the 
culpable  negligence  of  the  defendant's  engineer;  this  fact  is  conclusively 
established  by  the  verdict  of  the  jury,  and  in  the  determination  of  the 
questions  of  law  raised  upon  the  assignments  of  error,  this  fact  must 
necessarily  be  assumed.  It  is  unnecessary,  therefore,  to  refer  to  the 
evidence  bearing  upon  that  question.  The  appellant's  contention  is, 
however,  that,  as  the  plaintiff's  injuries  were  not  received  in  that  colli- 
sion, but  in  the  collision  which  subsequently  occurred  at  the  other 
extremity  of  the  chord,  the  negligence  of  the  engineer,  under  the  cir- 
cumstances, cannot  be  regarded  as  the  proximate,  but  as  the  remote 
cause  of  the  injury.  Ordinarily,  the  question  of  proximate  cause  is 
for  the  jury;  but,  where  the  facts  are  not  in  dispute,  the  determination 
of  that  question  is  for  the  court:  West  Mahanoy  Tp.  v.  Watson,  112  Pa. 
574;  s.  c.  116  Pa.  344.  Some  reference  to  the  undisputed  facts,  there- 
fore, is  necessary  to  a  complete  understanding  of  the  question  thus 
raised. 

It  is  conceded  that  in  the  first  collision,  although  no  one  was  injured, 
the  rear  truck  of  the  rear  coach  of  the  passenger  train  was  derailed. 
The  brakeman  pulled  the  automatic  cord  which  operates  the  air  brakes. 
The  engineer  put  on  the  air  from  the  engine,  and,  the  truck  ha^'ing  re- 
gained the  track,  the  train,  which  consisted  of  three  cars,  came  to  a  full 
stop,  with  the  middle  car  .standing  upon  the  second  crossing.  The  engi- 
neer of  the  dinkey  says  that,  about  the  time  of,  or  immediately  before 
the  collision,  he  reversed  his  engine,  shut  off  the  steam,  and  fearing  that 
they  would  be  crushed,  both  the  engineer  and  the  fireman  jumped  from 

'   Part  of  the  case  is  omitted.  —  Ed. 


SECT.   I.J  BUNTING    V.   HOGSETT.  117 

it  to  the  ground.  By  some  means,  however,  presumably  by  the  jar 
of  the  collision,  the  throttle  was  re-opened,  and  the  dinkey  at  once 
started  with  some  speed  around  the  arc  to  the  second  crossing,  where  it 
came  in  collision  \\nth  the  middle  coach,  in  which  the  plaintiff  was 
riding.  The  injuries  complained  of  were  received  in  this  second  colli- 
sion. The  appellant's  contention  is  that  the  throttle  having  been  closed 
before  Leehan,  the  engineer,  left  the  dinkey,  the  second  collision,  under 
all  the  circumstances,  could  not  have  been  foreseen  by  him,  as  the 
natural  and  probable  consequence  of  his  conduct,  and  that,  being 
in  fear  of  his  life,  he  had  a  right  to  quit  the  engine  for  a  place  of  safety. 
It  may  be,  perhaps,  that  the  engineer  and  fireman,  being  under  actual 
apprehension  of  great  bodily  harm,  were,  in  any  criminal  aspect 
of  the  case,  justified  in  leaping  from  the  engine  to  save  themselves,  even 
if  in  so  doing  they  should  put  in  jeopardy  the  lives  of  others.  But, 
assuming  this  to  be  so,  it  must  be  remembered  that  it  was  their  own 
negligence  which  put  them  in  fear  of  their  lives,  and  constrained  them 
to  leap  from  the  engine  and  submit  it,  without  control,  to  the  conse- 
quences of  the  collision.  They  will  be  justified,  perhaps,  as  we  have 
said,  in  saving  themselves,  but  it  does  not  follow  that  either  they, 
or  their  employer,  would  not  be  held  for  the  negligent  act  which  not 
only  put  them  in  peril  but  resulted  in  personal  injury  to  the  plaintiff. 
It  is  true,  as  the  appellant  contends,  that  the  injury  must  be  the 
natural  and  proximate  conseqence  of  the  negligence, —  a  consequence 
likely  to  flow  from  the  negligent  act.  The  engineer  would  be  held 
to  have  foreseen  whatever  consequences  might  ensue  from  his  negli- 
gence without  the  intervention  of  some  other  independent  agency, 
and  both  his  employer  and  himself  would  be  held  for  what  might, 
in  the  nature  of  things,  occur  in  consequence  of  that  negligence,  al- 
though, in  advance,  the  actual  result  might  have  seemed  improbable: 
Oil  City  Gas  Co.  v.  Robinson,  99  Pa.  6.  We  do  not  know  that  the 
throttle  was  opened  by  the  jar  of  the  collision,  only  from  the  fact  that 
it  was  liable  to  be  so,  and  the  engineer  will  be  presumed  to  have  fore- 
seen what  was  liable  to  occur.  The  inquiry  must  always  be  whether 
there  was  any  intermediate  cause,  disconnected  from  the  primary 
fault  and  self-operating,  which  produced  the  injury:  Milwaukee  etc. 
Ry.  Co.  V.  Kellogg,  94  U.  S.  469.  But  no  intermediate  cause,  discon- 
nected with  the  primary  fault  and  self-operating,  existed  in  this  case, 
to  affect  the  question  of  the  defendant's  liability;  it  was  the  engineer's 
negligence  that  caused  the  first  collision,  and  what  occurred  in  conse- 
quence of  this  collision  was  not  broken  by  the  intervention  of  any  inde- 
pendent agent,  whatever;  the  first  collision  derailed  the  truck,  and  at 
the  same  instant  opened  the  throttle  and  turned  loose  the  destructive 
agency  which  inflicted  the  injuries  complained  of.  The  negligence  of 
the  defendant's  engineer  was  the  natural,  primary,  and  proximate 
cause  of  the  entire  occurrence. 


118  REGINA  V.   BENNETT.  [CHAP.  III. 

REGINA  V.   BENT^ETT. 

Crowx  Case  Reserved.     1858. 

[Reported  28  L.  J.  M.  C  27.] 

Case  stated  bj-  Willes,  J.  The  defendant  was  convicted  of  the  man- 
slaughter of  Sarah  Williams.  The  defendant  was  a  dealer  in  fireworks, 
and  he  caused  fireworks  to  be  made  in  his  shop,  contrary  to  the  provi- 
sions of  9  «fe  10  Will.  3.  c.  7,  s.  1.  While  the  defendant  was  absent 
from  his  shop  a  fire  broke  out,  either  by  pure  accident  or  by  the  negli- 
gence of  his  servant,  and  a  rocket  was  caused  to  fly  across  the  street. 
The  rocket  set  fire  to  the  house  in  which  the  deceased  was  at  the  time, 
and  the  deceased  was  thereby  burned  to  death.  It  was  objected  that 
the  death  of  the  deceased  was  not  the  direct  and  immediate  result 
of  any  wrong  or  omission  on  the  part  of  the  defendant.  Willes,  .J., 
however,  overruled  tlie  objection,  holding  that  the  prisoner  was  guilt}' 
of  a  misdemeanor  in  doing  an  act  with  intent  to  do  what  was  forbidden 
by  the  statute  ;  and  that  as  the  fire  was  occasioned  by  such  misde- 
meanor, find  without  it  would  not  have  taken  place,  or  could  not  have 
been  of  such  a  character  as  to  cause  the  death  of  the  deceased,  which 
otherwise  would  not  have  taken  place,  a  case  was  made  out.^ 

CocKBURN,  C.  J.  —  The  prisoner  kept  a  quantit}-  of  fireworks  in  his 
house,  but  that  alone  did  not  cause  the  fire  by  which  the  death  was 
occasioned.  It  was  the  superadded  negligence  of  some  one  else  that 
caused  it.  Had  the  death  proceeded  from  the  natural  consequence  of 
this  unlawful  keeping  of  the  fireworks,  as,  for  instance,  if  from  the 
prisoner's  negligent  keeping  of  them  a  rocket  had  gone  off  in  sponta- 
neous combustion,  and  so  caused  the  death,  the  conviction  might, 
I  think,  have  been  maintained.  But  here  the  death  was  caused  by  the 
act  of  the  defendant  plus  the  act  of  some  one  else. 

Willes,  J.  Having  given  verj'  full  consideration  to  tliis  case  since 
the  trial,  I  concur  in  the  opinion  of  the  Chief  Justice,  that  the  interven- 
ing of  the  negligent  act  of  the  servant  makes  the  death  too  remotely 
caused  by  the  illegal  act  of  the  prisoner  in  keeping  the  fireworks,  and 
so  disconnects  it  from  his  act,  and  that  the  conviction  cannot  be 
supported. 

The  other  Judges  concurred.  Conviction  quashed. 

1  This  short  statement  of  the  case  is  abridged  from  the  statement  of  Willes,  J. 
—  Ed. 


SECT.    I  ]  WOOD    V.    PENNSYLVANIA    EAILROAD    CO.  119 


WOOD   I'.   PENNSYLVANIA  RAILROAD  CO. 

Supreme  Court  of  Pennsylvania,  1896. 

[Reported  177  Pa.  306.] 

Dean,  J.  We  take  the  facts  as  stated  by  the  court  below,  as  follows: 
*'0n  the  26th  of  October,  1893,  the  plaintiff,  having  bought  a  return 
ticket,  went  as  a  passenger  upon  the  railroad  of  the  defendant  com- 
pany from  Frankford  to  Holmesburg.  After  spending  the  day  there 
attending  to  some  matters  of  business,  he  concluded  to  come  back  upon 
a  way  train  due  at  Holmesburg  at  five  minutes  after  six  in  the  evening. 
While  waiting  for  this  train,  the  plaintiff  stood  on  the  platform  of  the 
station,  which  was  on  the  north  side  of  the  tracks,  at  the  eastern  end 
of  the  platform  with  his  back  against  the  wall  at  the  comer.  To  the 
eastward  of  the  station,  a  street  crosses  the  railroad  at  grade.  How  far 
this  crossing  is  from  the  station  does  not  appear  from  the  evidence. 
It  was  not  so  far  away,  however,  but  that  persons  on  the  platform 
could  see  objects  at  the  crossing.  For  at  least  one  hundred  and  fifty 
yards  to  the  eastward  of  the  crossing,  the  railroad  is  straight,  and 
then  curves  to  the  right.  About  6  o'clock,  an  express  train  coming 
from  the  eastward  upon  the  north  track  passed  the  station,  and  the 
plaintiff,  while  standing  in  the  position  described,  was  struck  upon  the 
leg  by  what  proved  to  be  the  dead  body  of  a  woman,  and  was  in- 
jured. The  headlight  of  the  approaching  locomotive  disclosed  to  one 
of  the  witnesses  who  stood  on  the  platform  two  women  in  front  of 
the  train  at  the  street  crossing,  going  from  the  south  to  the  north  side 
of  the  tracks.  One  succeeded  in  getting  across  in  safety,  and  the 
other  was  struck  just  about  as  she  reached  the  north  rail.  How  the 
woman  came  to  be  upon  the  track,  there  is  nothing  in  the  evidence  to 
show.  There  was  e\adence  that  no  bell  was  rung  or  whistle  blown  upon 
the  train  which  struck  the  woman  before  it  came  to  the  crossing,  and 
some  evidence  that  it  was  running  at  the  rate  of  from  fifty  to  sixty 
miles  an  hour.  Upon  this  state  of  facts,  the  trial  judge  entered  a  non- 
suit." 

The  court  in  banc  having  afterwards  refused  to  take  off  the  nonsuit, 
we  have  this  appeal. 

Was  the  negligence  of  defendant  the  proximate  cause  of  plaintiff's 
injury?  Judge  Pennypacker,  delivering  the  opinion  of  a  majority 
of  the  court  below,  concluded  it  was  not,  and  refused  to  take  off  the 
non-suit.  Applying  the  rule  in  Hoag  v.  Railroad  Co.,  85  Pa.  293,  to 
these  facts,  the  question  on  which  the  case  turns  is:  "Was  the  injury 
the  natural  and  probable  consequence  of  the  negligence, —  such  a  con- 
sequence as  under  the  surrounding  circumstances  might  and  ought  to 
have  been  foreseen  by  the  wrongdoer  as  likely  to  flow  from  his  act." 


120  WOOD    V.    PENNSYLVANIA    RAILROAD    CO.  [CHAP.  III. 

As  concerns  the  situation  of  plaintiff  at  the  time  of  his  injury,  and 
the  relation  of  that  fact  to  the  cause,  whether  near  or  remote,  we  do 
not  consider  it  important.  He  was  where  he  had  a  right  to  be,  on  the 
platform  of  the  station;  that  he  had  purchased  a  ticket  for  passage 
on  defendant's  road  and  was  waiting  on  its  platform  for  his  train 
has  no  particular  bearing  on  the  question.  The  duty  of  defendant  to 
him  at  that  time  was  to  pro\'ide  a  platform  and  station,  safe  structures, 
for  him  and  others  who  desired  to  travel.  In  this  particular,  its  duty 
was  performed;  the  injury  is  not  in  the  remotest  degree  attributable 
to  the  platform  or  the  station.  It  is  sufficient  to  say,  when  there  he 
was  not  a  trespasser  on  defendant's  property,  and  therefore  his  action 
does  not  fail  for  that  reason ;  but  he  is  in  no  more  favorable  situation  as 
a  suitor,  than  if  he  had  been  walking  alongside  the  railroad,  on  the 
public  highway,  or  at  any  other  place  where  he  had  a  right  to  be. 

The  rule  quoted  in  Hoag  v.  Railroad,  supra,  is  in  substance  the  con- 
clusion of  Lord  Bacon,  and  the  one  given  in  Broom's  Legal  Maxims. 
It  is  not  only  the  well  settled  rule  of  this  state,  but  is,  generally,  that 
of  the  LTnited  States.  Professor  Jaggard,  in  his  valuable  work  on  torts, 
after  a  reference  to  very  many  of  the  cases  decided  in  a  large  number 
of  the  states,  among  them  Hoag  v.  R.  R.  Co.,  comes  to  this  conclusion: 
"  It  is  admitted  that  the  rule  is  difficult  of  application.  But  it  is  gen- 
erally held  that  in  order  to  warrant  a  finding  that  negligence,  or  an  act 
not  amounting  to  wanton  wrong,  is  a  proximate  cause  of  an  injiu-y, 
it  must  appear  that  the  injury  was  the  natural  and  probable  conse- 
quence of  the  negligence  or  wrongful  act,  and  that  it  ought  to  have 
been  foreseen  in  the  light  of  the  attending  circumstances:"  Jaggard 
on  Torts,  chap.  v.  Judge  Cooley  states  the  rule  thus :  "  If  the  original 
act  was  wrongful,  and  would,  naturally,  according  to  the  ordinary 
course  of  events,  prove  injurious  to  some  others,  and  result,  and  does 
actually  result,  in  injury,  through  the  intervention  of  other  causes 
not  wTongful,  the  injury  shall  be  referred  to  the  wrongful  cause,  pass- 
ing through  those  which  were  innocent":  Cooley  on  Torts,  69.  This, 
also,  is  in  substance  the  rule  of  Hoag  v.  Railroad  Co.  All  the  specula- 
tions and  refinements  of  the  philosophers  on  the  exact  relations  of 
cause  and  effect  help  us  very  little  in  the  determination  of  rules  of 
social  conduct.  The  juridical  cause,  in  such  a  case,  as  we  have  held 
over  and  over,  is  best  ascertained  in  the  practical  affairs  of  life  by  the 
application  to  the  facts  of  the  rule  in  Hoag  v.  Railroad  Co. 

Adopting  that  rule  as  the  test  of  defendant's  liability,  how  do  we 
determine  the  natural  and  probable  consequences  which  must  be 
foreseen,  of  this  act?  We  answer,  in  this  and  all  like  cases,  from  com- 
mon experience  and  observation.  The  probable  consequence  of  cross- 
ing a  railroad  in  front  of  a  near  and  approaching  train  is  death  or 
serious  injury;  therefore,  acting  from  an  impulse  to  self-preservation, 
or  on  the  reflection  that  prompts  to  self-preservation,  we  are  deterred 
from  crossing.    Our  conduct  is  controlled  by  the  natural  and  probable 


SECT.  I.]  "WOOD    V.    PENNSYLVANIA   EAILROAD    CO.  121 

consequence  of  what  our  experience  enables  us  to  foresee.  True,  a 
small  number  of  those  who  have  occasion  to  cross  railroads  are  reck- 
less, and  either  blind  to  or  disregardful  of  consequences,  cross  and 
are  injured,  killed  or  barely  escape;  but  this  recklessness  of  the  very 
few  in  no  degree  disproves  the  foreseeableness  of  the  consequences  by 
mankind  generally.  Again,  the  competent  railroad  engineer  know^s, 
from  his  own  experience  and  that  of  others  in  like  employment,  that  to 
approach  a  grade  highway  crossing  with  a  rapidly  moving  train  without 
warning  is  dangerous  to  the  lives  and  limbs  of  the  public  using  the 
crossing;  he  knows  death  and  injury  are  the  probable  consequences  of  his 
neglect  of  duty,  therefore  he  gives  warning.  But  does  any  one  believe 
the  natural  and  probable  consequence  of  standing  fifty  feet  from  a  cross- 
ing to  the  one  side  of  a  railroad,  w^hen  a  train  is  approaching,  either  with 
or  without  warning,  is  death  or  injury?    Do  not  the  most  prudent,  as  -^  , 

well  as  the  public  generally,  all  over  the  land,  do  just  this  thing  every 
day,  without  fear  of  danger?  The  crowded  platforms  and  grounds 
of  railroad  stations,  generally  located  at  crossings,  alongside  of  ap-  //nJl 
proaching,  departing  and  swiftly  passing  trains,  prove  that  the  public, 
from  experience  and  observation,  do  not,  in  that  situation,  foresee 
any  danger  from  trains.  They  are  there,  because,  in  their  judgment, 
although  it  is  possible  a  train  may  strike  an  object,  animate  or  inani- 
mate, on  the  track  and  hurl  it  against  them,  such  a  consequence  is  so 
highly  improbable  that  it  suggests  no  sense  of  danger;  they  feel  as  se- 
cure as  if  in  their  homes;  to  them  it  is  no  more  probable  than  that  a 
train  at  that  point  will  jump  the  track  and  run  over  them.  If  such  a 
consequence  as  here  resulted  was  not  natural,  probable  or  foreseeable 
to  anybody  else,  should  defendant,  under  the  rule  laid  down  in  Hoag 
V.  Railroad  Co.  be  chargeable  with  the  consequence?  Clearly,  it  was 
not  the  natural  and  probable  consequence  of  its  neglect  to  give  warn- 
ing, and  therefore  was  not  one  which  it  was  bound  to  foresee.  The  in- 
jury, at  most,  was  remotely  possible,  as  distinguished  from  the  natural 
and  probable  consequence  of  the  neglect  to  give  warning.  As  is  said 
in  Railroad  Co.  v.  Trich,  117  Pa.  399:  "Responsibility  does  not  extend 
to  every  consequence  which  may  possibly  result  from  negligence." 

What  we  have  said  thus  far  is  on  the  assumption,  the  accident  was 
caused  solely  by  the  negligence  of  defendant,  or  by  the  concurring 
negligence  of  defendant  and  the  one  killed  going  upon  the  track  with 
a  locomotive  in  full  view.  This  being  an  action  by  an  innocent  third 
person,  he  cannot  be  deprived  of  his  remedy  because  his  injury  resulted  -x 

from  the  concurrent  negligence  of  two  others.     He  fails  because  his  ~1  \\kSL^ 
injury  was  a  consequence  so  remote  that  defendant  could  not  reason-      \      j* 
ably  foresee  it.^  \ 

1  The  remainder  of  the  opinion  discusses  the  alleged  negligence  of  the  defendant. — 
Ed. 


^ 


122  HILL    V.    WINSOR.  [chap.  IIL 

HILL  V.  WINSOR. 
Supreme  Judicial  Court  of  Massachusetts,  1875. 

[Reported  118  Mas3.  251.] 

Tort  against  the  owners  of  the  steam-tug  Argus  for  personal  in- 
juries sustained  by  the  plaintiff,  through  the  alleged  negligence  of 
those  in  charge  of  the  tug  in  causing  her  to  strike  violently  against 
the  fender  of  Warren  Bridge,  a  bridge  between  Boston  and  Charles- 
town.  Trial  in  the  Superior  Court,  before  Bacon,  J.,  who  allowed  the 
following  bill  of  exceptions: 

The  plaintiff's  evidence  tended  to  show  that  the  plaintiff,  wdth  other 
shipwrights  and  bridge  builders,  were,  on  December  12,  1872,  em- 
ployed by  those  in  charge  of  Warren  Bridge  to  repair  its  fender;  that 
this  fender  was  on  the  upper  side  of  it  about  eighteen  feet  from  the 
main  structure,  and  extended  from  the  draw  to  the  wharf  on  the 
Charlestown  side;  that  this  fender,  when  perfect  and  in  good  order, 
consisted  of  large  oak  piles  about  fifteen  inches  in  diameter  at  the  top 
and  about  twelve  feet  apart,  driven  perpendicularly  into  the  bed  of  the 
river,  and  two  driven  at  a  slight  incline  therefrom,  trending  down  the 
river,  and  fastened  to  the  lower  part  of  the  upright  piles,  and  one 
trending  up  the  river,  whose  top  was  fitted  to,  or  intended  to  fit,  the 
top  of  the  upright  pile,  and  to  be  fastened  to  it  and  to  the  cap  thereon 
by  spikes,  the  two  piles  trending  down  the  river  being  of  less  length  and 
diameter  than  the  others ;  that  this  cap,  consisting  of  yellow  pine  timber 
fifteen  inches  square,  extended  along  the  whole  row  of  piles,  resting 
upon  the  tops  of  the  same;  that  on  said  day  a  foreman,  with  six  work- 
men, including  the  plaintiff,  were  employed  in  repairing  the  fender; 
that  they  worked  in  tliree  parties,  each  party  standing  on  planks  sus- 
tained by  spikes  driven  into  the  upper  spurshores  or  inclined  piles  of 
the  fender,  and  about  nine  or  ten  feet  above  the  water  of  the  river; 
that  it  was  then  half  tide,  the  river  deep,  and  the  ebb-tide  setting 
down  at  the  rate  of  three  to  four  miles  per  hour;  that  the  men  were 
standing  on  the  planks,  and  working  in  pairs  fitting  the  heads  of  the 
upper  inclined  pile  or  spurshore  to  the  cap  and  to  the  tops  of  the 
upright  piles;  that  two  of  these  men  were  towards  the  Charlestown 
side  from  the  plaintiff,  and  were  working  at  a  pile  about  thirty  feet  east 
from  the  spurshore  where  several  of  the  defendants'  witnesses  testified 
that  the  tug  struck;  that  the  plaintiff  was  at  work,  standing  alone  on 
a  plank  about  sixty  feet  east  from  said  spurshore,  his  companion  hav- 
ing left  him  a  short  time  previously;  that,  in  order  to  fit  his  spurshore 
to  the  pile  and  cap,  he  had  put  in  a  brace  about  twelve  inches  long  and 
three  inches  in  diameter,  to  keep  the  spurshore  and  pile  apart  while 
he  was  at  work;  that  two  more  workmen  were  fitting  a  spurshore  about 
sixty  feet  east  of  the  plaintiff,  and  the  foreman  of  the  work  was  on 
the  bridge;  that  a  portion  of  the  spurshores  were  not  completed  and 


SECT.  I.]  HILL    V.   WINSOR.  123 

fastened  to  the  caps;  that  a  few  minutes  before  the  tug  struck  against 
the  spurshore,  she  had  come  down  to  the  entrance  of  the  draw  from 
some  point  above  the  bridge.  The  defendants'  evidence  showed  that 
their  vessel  was  about  sixty-five  feet  in  length;  that  while  at  the 
draw  the  master  of  the  tug  was  requested  to  tow  down  a  raft  hang 
near  the  Fitchburg  Railroad  Bridge,  and,  finding  it  difficult  or  impos- 
sible to  turn  around,  he  backed  his  tug  towards  the  Charlestown 
shore,  but  was  not  able  to  reach  the  raft,  as  the  tide  swept  him  down 
towards  the  fender  of  the  Warren  Bridge;  that,  as  he  backed  over,  he 
passed  near  the  fender,  and  was  seen  by  the  workmen  thereon  who 
were  visible  from  his  deck. 

The  plaintiff's  evidence  further  tended  to  show  that  when  the  master 
of  the  tug  was  nearly  across  the  river,  but  could  not  reach  the  raft, 
and  had  drifted  within  a  short  distance  of  the  fender,  he  started  the 
tug  with  a  view  to  return  to  the  draw,  and  after  running  towards 
Boston,  about  her  length,  at  the  rate  of  three  to  four  miles  an  hour, 
struck  one  of  the  upper  spurshores  of  the  fender  at  the  point  above 
described;  that  the  blow  jarred  the  fender  for  the  distance  of  ninety 
feet;  that  the  workmen,  on  the  planks  hung  over  the  river,  as  soon  as 
they  heard  the  tug  and  saw  it  coming,  sprung  from  their  planks  to 
reach  the  top  of  the  fender,  and  all  reached  the  cap  except  the  plaintiff, 
who  testified  that,  as  he  was  at  work,  the  first  he  knew  he  heard  a 
puffing  noise  coming  along,  and  he  turned  his  head  and  looked,  and  saw 
the  boat  coming,  and  just  as  he  threw  his  hands  over  his  head  to  grab  at 
the  pile,  so  as  to  jump  upon  the  cap,  and  just  as  he  grabbed  the  top  of 
the  pile,  she  struck  about  three  piles  from  where  he  was,  and  the 
moment  she  struck  there  was  a  jar  that  jarred  the  whole  thing,  and 
knocked  his  brace  out,  and  the  piles  came  right  together  as  quick  as 
a  flash,  and  caught  his  fingers  between  the  pile  and  the  cap,  and  his 
knee  ran  in  between  the  two  piles  below  the  cap,  and  there  he  was  fast ; 
that  he  never  heard  or  saw  the  boat  until  he  heard  the  puffing  noise, 
and  looked  round  and  saw  her  coming;  that  after  she  first  struck  she 
came  passing  along,  striking  one  pile  and  the  other;  that  she  went 
right  along  and  struck  the  pile  he  was  fast  in,  and  she  ran  her  whole 
length  right  up  hard  against  it,  and  passed  right  on  until  she  got  one 
or  two  piles  by  him;  that  he  was  thus  seriously  injured.' 

Colt,  J.  In  actions  of  this  description,  the  questions  whether 
the  plaintiff  was  himself  in  the  exercise  of  due  care,  and  the  defendants' 
act  negligent,  whether  the  injury  suffered  was  due  to  that  act,  as  well 
as  the  amount  of  damage  to  the  plaintiff,  are,  as  a  general  rule,  practical 
questions  of  fact  to  be  settled  by  the  knowledge  and  experience  of  the 
jury.  The  defendants'  liability  depends  upon  circumstances  which, 
as  the  cases  arise,  are  of  infinite  variety  and  combination.  If  there  is 
any  evidence  upon  which  the  jury  may  legally  found  a  verdict  for  the 
plaintiff,  that  verdict  cannot  be  disturbed  on  exceptions  as  matter  of 

^  The  remainder  of  the  testimony  and  part  of  the  opinion  are  omitted.  — Ed. 


124  EIGDON    V.   TEMPLE   WATER   WORKS   CO.  [CHAP.  III. 

law,  unless  there  has  been  some  error  in  the  conduct  of  the  trial,  or  the 
judge  has  failed  to  state  the  true  test  of  liability  in  his  instructions  as 
applied  to  the  facts  disclosed. 

Under  the  instructions  given  in  the  present  case,  the  jury  must 
have  found  that  the  injury  of  the  plaintiff  was  caused  by  neglect 
or  want  of  ordinary  care  on  the  part  of  those  who,  as  agents  and  ser- 
vants of  the  defendants,  had  charge  of  the  tug-boat;  and  that  this  neg- 
ligence consisted  in  not  using  such  care  in  its  navigation  and  manage- 
ment as  persons  of  ordinary  prudence  would  use  under  circumstances 
of  like  exposure  and  danger.  They  must  have  also  found  that  the 
plaintiff  was  himself  in  the  exercise  of  due  care  in  attempting  to  escape 
the  peril  to  which  he  was  exposed  by  the  defendants'  conduct,  and  that 
his  injury  was  therefore  due  solely  to  the  defendants'  negligence.  The 
e\'idence  reported  justifies  these  findings.  The  structure  upon  which 
the  plaintiff  was  at  work  was  imperfect  and  out  of  repair.  Its  condition 
at  the  time,  the  plaintiff's  exposed  position  upon  it,  and  the  knowledge 
of  that  exposure  which  those  in  charge  of  the  boat  had,  or  in  the  exercise 
of  due  care  might  have  had,  were  elements  affecting  the  question  of  the 
defendants'  negligence  to  which  the  attention  of  the  jury  was  especially 
called.  It  cannot  be  said,  as  matter  of  law,  that  the  jury  might  not 
properly  find  it  ob\dously  probable  that  injury  in  some  form  would  be 
caused  to  those  who  were  at  work  on  the  fender  by  the  act  of  the  de- 
fendants in  running  against  it.  This  constitutes  negligence,  and 
it  is  not  necessary  that  injury  in  the  precise  form  in  which  it  in  fact 
resulted  should  have  been  foreseen.  It  is  enough  that  it  now  appears 
to  have  been  a  natural  and  probable  consequence.  Lane  v.  Atlantic 
Works,  111  Mass.  136,  and  cases  cited. 


RIGDON  V.  TEMPLE  WATER  WORKS  CO. 
Court  of  Civil  Appeals,  Texas,  1895. 

[Re-ported  11   Tex.  Civ.  App.  542.] 

Fisher,  C.  J.  Mary  Rigdon,  the  wife  of  O.  T.  Rigdon,  deceased, 
in  her  own  behalf  and  that  of  Ethel  and  Ora  Frank  Rigdon,  the  minor 
children  of  herself  and  deceased  husband,  sued  the  appellee  in  the 
form  and  manner  as  appears  from  her  petition,  as  follows: 

"That  the  Temple  Water  Works  Company,  during  the  year  1890, 
and  prior  to  the  25th  day  of  October,  1890,  caused  to  be  erected  a 
water  tower,  in  Temple,  Texas,  for  the  purpose  of  storing  water  therein ; 
said  water  tower  being  about  twenty  feet  in  diameter  and  about  one 
hundred  and  fifty  feet  in  height.  That  said  water  tower  was  badly 
planned,  the  height  being  too  great  for  the  diameter,  the  same  being 
from  this  defect  liable  to  fall.  That  said  water  tower  was  contracted 
to  be  constructed  of  material  which  was  not  sufficiently  strong,  and 
in  a  manner  of  workmanship  which  would  not  withstand  the  weight 


SECT.  I.]      LORDS  BAILIFF-JURATS   V.   CORP'N   OF  TRINITY  HOUSE.      125 

of  its  foundation  and  the  pressure  on  the  sides  that  would  be  necessary 
to  hold  the  quantity  of  water  that  would  be  contained  therein  when  full ; 
that  said  water  tower  was  constructed  by  careless  and  unskilled  work- 
men under  the  supervision  of  W.  E.  Thomas  and  the  Temple  Water 
Works  Company,  which  defendants  well  knew  as  the  same  was  being 
constructed;  that  said  water  tower  was  constructed  of  poor,  inferior 
and  insufficient  material  of  rock  and  cement  and  mortar  in  the  founda- 
tion, and  steel  and  iron  and  rivets  on  its  sides,  which  defendants  well 
knew  at  the  time  of  and  as  the  same  was  being  constructed. 

"  And  plaintiffs  allege  that  by  reason  of  the  defects  aforesaid,  at  3 
o'clock  A.  M.  of  October  25,  1891,  said  water  tower  then  being  filled 
with  water,  and  containing  about  275,000  gallons,  fell  over  and  threw 
said  water  out,  which  rushed  in  a  torrent  upon  the  home  of  0.  T. 
Rigdon  and  yoiq*  petitioners,  capsizing  and  crushing  the  same  and 
throwing  a  burning  lamp  filled  with  oil  upon  one  O.  T.  Rigdon,  the  oil 
being  spilled  upon  his  clothing  and  set  afire  from  the  lighted  lamp,  by 
which  means  said  O.  T.  Rigdon  was  fatally  burned,  and  from  the  effects 
of  which  he  that  day  died  also;  and  the  goods  and  effects  of  the  said 
0.  T.  Rigdon,  your  petitioner,  consisting  of  clothing,  furniture  and 
other  personal  property  of  the  value  of  five  hundred  (S500)  dollars, 
were  totally  destroyed  by  crushing  and  by  fire,  the  effect  of  water  re- 
sulting from  the  insufficient  workmanship  and  material  used  in  the 
construction  of  said  water  tower."  ^ 

The  damages  alleged  are  not  speculative  or  remote,  and  it  is  shown 
that  they  proximately  resulted  from  the  negligence  charged.  The  orig- 
inal negligence  was  the  faulty  construction  of  the  water  tower.  The 
explosion  of  the  lamp  and  the  ignition  of  the  oil  was  the  proximate 
result  of  the  fall  of  the  tower.  This  effect  is  traceable  to  the  original 
cause,  which  is  found  to  be  the  negligence  of  appellee  in  erecting  the 
tower.    Railway  v.  Mussette,  86  Tex.  710.  .  .  . 


THE  LORDS  BAILIFF-JURATS  OF  ROMNEY  MARSH  v.  THE 
CORPORATION  OF  THE  TRINITY  HOUSE. 

Court  of  Exchequer,  1870. 

[Reported  L.  R.  5  Ex.  204.] 

Special  case  stated  in  an  action  for  negligence  tried  before  Cock- 
burn,  C.  J.,  at  Maidstone,  on  the  10th  of  March,  1869,  in  which  a  ver- 
dict was  found  for  the  plaintiffs  for  93/.,  subject  to  the  opinion  of  the 
Court  on  a  special  case. 

The  fiirst  count  of  the  declaration  charged  the  defendants  with  unskil- 
ful and  negligent  navigation  of  their  ship  by  their  servants,  whereby  the 
same  was  wrecked,  and  ran  foul  of  and  injured  a  sea  wall  of  the  plaintiffs'.^ 

1  The  remainder  of  the  petition  and  other  portions  of  the  opinion  are  omitted.  —  Ed. 

2  Only  so  much  of  the  case  as  discusses  this  count  is  given. —  Ed. 


126     LORDS  BAILIFF-JURATS  V.  CORP'N  OF  TRINITY  HOUSE.     [CHAP.  III. 

The  facts  stated  in  the  case  were  as  follows.  On  the  30th  of  Novem- 
ber, 1867,  the  defendants'  pilot  cutter  Queen,  through  the  negligence 
of  her  captain  and  crew,  struck  upon  a  shoal  about  three-quarters  of 
a  mile  out  from  the  Dymchurch  wall,  a  sea  wall  owned  and  repaired  by 
the  plaintiffs.  It  was  then  blowing  hard,  and  there  was  a  flood  tide; 
and  in  consequence,  after  the  vessel  struck,  the  captain  and  crew  lost 
all  control  over  her,  and  she  gradually  drifted  towards  the  shore,  and  was 
at  last  driven  against  the  wall.  If  the  weather  had  been  moderate  and 
the  state  of  the  tide  different,  this  might  have  been  prevented,  but  in 
the  then  state  of  the  weather  and  tide  it  was  impossible  to  prevent  it. 
After  the  ship  struck  the  ground,  some  of  the  crew  escaped  in  a  boat, 
and  the  captain  and  the  rest  of  the  crew  were  rescued  from  the  cutter 
just  before  she  struck  the  wall. 

Kelly,  C.  B.  The  question  in  this  case  is,  whether  the  injury 
to  the  plaintiffs'  wall  was  so  caused  by  the  negligence  of  the  defendants 
as  to  make  the  defendants  liable  within  the  rule  of  law  applicable 
to  such  cases. 

The  defendants'  vessel,  by  the  negligence  of  the  captain  and  crew, 
grounded  upon  a  shoal  or  sand-bank  within  three-quarters  of  a  mile 
of  the  wall  of  the  plaintiffs',  the  immediate  effect  of  which  was  that 
the  vessel  became  unmanageable  and  beyond  the  control  of  the  crew; 
and  as  at  the  time  a  high  wind  was  blowing  and  the  tide  flowing  towards 
the  shore,  the  vessel  was  driven  and  carried  with  great  violence  against 
the  wall,  and  so  effected  the  injury  in  question. 

The  rule  of  law  is,  that  negligence  to  render  the  defendants  liable 
must  be  the  causa  causans,  or  the  proximate  cause  of  the  injiu-y,  and 
not  merely  a  causa  sine  qua  non. 

I  think  that  it  was  so  in  the  present  case.  The  immediate  effect  of 
the  negligence  was  to  put  the  vessel  into  such  a  condition  that  it 
must  necessarily  and  inevitably  be  impelled  in  whatever  direction  the 
wind  and  tide  were  giving  at  the  moment  to  the  sea,  and  this  was 
directly  upon  and  towards  the  plaintiffs'  wall.  The  case,  therefore, 
appears  to  me  to  be  the  same  as  if  the  ship  had  been  l\'ing  at  anchor, 
wnth  the  tide  flo\\'ing  rapidly  towards  a  rock,  and  the  defendants  had, 
by  some  negligence,  broken  the  chain  and  set  free  the  ship,  in  conse- 
quence of  which  it  had  at  once  and  immediately  been  carried  by  the 
tide  wnth  great  force  and  \Tlolence  against  the  rock,  and  had  become  a 
UTeck.  Would  not  the  AATeck  of  the  ship  have  been  caused  by  the  neg- 
ligence which  broke  the  chain?  I  think  that  it  would,  and  that  such  a 
case  and  the  case  before  the  court  are  the  same;  that  the  negligence  of 
the  crew,  the  servants  of  the  defendants,  was  thus  the  immediate  cause 
of  the  ship  being  driven  against  the  wall  of  the  plaintiffs,  and  that 
the  plaintiffs  are  therefore  entitled  to  recover.  My  Brother  Pigott 
concurs  in  this  judgment,  and  my  Brother  Martin,  though  enter- 
taining some  doubt  upon  the  case,  does  not  dissent. 

Judgment  for  the  plaintiffs. 


SECT.   I.]  THE    G.    K.    BOOTH.  127 

THE  G.  R.   BOOTH. 
Supreme  Court  of  the  United  States,  1898. 

[Reported  171    U.  S.  450.] 

Gray,  J.  This  was  a  libel  against  the  steamship  G.  R.  Booth,  for 
damage  done  to  sugar,  part  of  her  cargo,  under  the  following  cir- 
cumstances: Another  part  of  the  cargo  consisted  of  twenty  cases  of 
detonators,  being  copper  caps  packed  with  fulminate  of  mercury  for 
exploding  djTiamite  or  gun-cotton.  While  she  was  being  unladen 
at  the  dock  in  her  port  of  destination,  one  of  the  cases  of  detonators 
exploded,  purely  by  accident,  and  without  any  fault  or  negligence 
on  the  part  of  any  one  engaged  in  carrying  or  discharging  the  cargo. 
The  explosion  made  a  large  hole  in  the  side  of  the  ship,  through  which 
the  sea  water  rapidly  entered  the  hold,  and  greatly  damaged  the  sugar. 

The  bill  of  lading  of  the  sugar  proxndes  that  "the  ship  or  carrier 
shall  not  be  liable  for  loss  or  damage  occasioned  by  the  perils  of  the  sea 
or  other  waters,"  or  "by  collision,  stranding  or  other  accidents  of 
navigation,  of  whatsoever  kind." 

The  question  certified  by  the  Circuit  Court  of  Appeals  to  this 
court  is  whether  the  damage  to  the  sugar  is  witliin  these  exceptions 
in  the  bill  of  lading. 

The  case  turns  upon  the  question  whether  the  damage  to  the  sugar 
by  the  sea  water  which  entered  the  ship  through  the  hole  made  in  her 
side  by  the  explosion,  without  her  fault,  was  "occasioned  by  the 
perils  of  the  sea";  or,  in  other  words,  whether  it  is  the  explosion,  or  a 
peril  of  the  sea,  that  is  to  be  considered  as  the  proximate  cause  of  the 
damage,  according  to  the  familiar  maxim  causa  proxima  non  remofa 
spectatur. 

The  many  authorities  bearing  upon  this  point,  fully  cited  and  dis- 
cussed in  the  learned  arguments  at  the  bar,  have  been  carefully  ex- 
amined. But  only  a  few  of  them  need  to  be  referred  to,  because  judg- 
ments heretofore  delivered  by  this  court  afford  sufficient  guides  for 
the  decision  of  this  case.^ 

In  the  case  at  bar,  the  explosion  of  the  case  of  detonators,  besides 
doing  other  damage,  burst  open  the  side  of  the  ship  below  the  water 
line,  and  the  sea  water  rapidly  flowed  in  through  the  opening  made 

1  The  learned  judge  here  discussed  the  following  cases:  U.  S.  t.  Hall,  6  Cranch, 
^  171;  Waters  v.  Merchants'  Ins.  Co.,  11  Pet.  213;  Insurance  Co.  v.  Tweed,  7  Wall. 
44;  Insurance  Co.  t.  Boon,  9.5  U.  S.  117;  Insurance  Co.  u.  Transportation  Co.,  12 
Wall.  194;  Milwaukee  &  St.  Paul  Ry.  v.  Kellogg,  94  U.  S.  469;  The  Mohawk, 
8  Wall.  1.53;  The  Portsmouth,  9  Wall.  682;  Phoenix  Ins.  Co.'r.  Erie  Transportation 
Co.,  117  U.  S.  312;  Liverpool  Steam  Ins.  Co.  r.  Phoenix  Ins.  Co.,  129  U.  S.  397; 
Compania  La  Flecha  v.  Brauer,  168  U.  S.  104;  The  Xantho,  12  App.  Cas.  503.—  Ed. 


128  THE    G.    R.    BOOTH.  [CHAP.  IH. 

by  the  explosion,  and  injured  the  phiintiff's  sugar.  The  explosion, 
in  consequence  of  which,  and  through  the  hole  made  by  which,  the 
water  immediately  entered  the  ship,  must  be  considered  as  the  pre- 
dominant, the  efficient,  the  proximate,  the  responsible  cause  of  the 
damage  to  the  sugar,  according  to  each  of  the  tests  laid  down  in  the 
judgments  of  this  court,  above  referred  to.  The  damage  to  the  sugar 
was  an  effect  which  proceeded  ine\'itably,  and  of  absolute  necessity, 
from  the  explosion,  and  must  therefore  be  ascribed  to  that  cause. 
The  explosion  concurred,  as  the  efficient  agent,  with  the  water,  at 
the  instant  when  the  water  entered  the  ship.  The  inflow  of  the 
water,  seeking  a  level  by  the  mere  force  of  gravitation,  was  not  a  new 
and  independent  cause  but  was  a  necessary  and  instantaneous  result 
and  effect  of  the  bursting  open  of  the  ship's  side  by  the  explosion. 
There  being  two  concmrent  causes  of  the  damage  —  the  explosion  of 
the  detonators,  and  the  inflow  of  the  water  —  without  any  appreciable 
interval  of  time,  or  any  possibility  of  distinguishing  the  amount  of 
damage  done  by  each,  the  explosion,  as  the  cause  which  set  the  water 
in  motion,  and  gave  it  its  efficiency  for  harm  at  the  time  of  the  disaster, 
must  be  regarded  as  the  predominant  cause.  It  was  the  primary  and 
efficient  cause,  the  one  that  necessarily  set  the  force  of  the  water  in 
operation ;  it  was  the  superior  or  controlling  agency,  of  which  the  water 
was  the  incident  or  instrument.  The  inflow  of  the  sea  water  was 
not  an  intermediate  cause,  disconnected  from  the  primary  cause,  and 
self-operating;  it  was  not  a  new  and  independent  cause  of  damage; 
but,  on  the  contrary,  it  was  an  incident,  a  necessary  incident  and  con- 
sequence, of  the  explosion;  and  it  was  one  of  a  continuous  chain  of 
events  brought  into  being  by  the  explosion  —  events  so  linked  together 
as  to  form  one  continuous  whole. 

The  damage  was  not  owing  to  any  \'iolent  action  of  winds  or  waves, 
or  to  the  ship  coming  against  a  rock  or  shoal  or  other  external  object; 
but  it  was  owdng  to  an  explosion  within  the  ship,  and  arising  out  of 
the  nature  of  the  cargo,  which  cannot  be  considered,  either  in  common 
understanding,  or  according  to  the  judicial  precedents,  as  a  peril  of  the 
sea. 

As  was  observed  by  this  court  in  Insurance  Co.  v.  Boon,  above 
cited,  "Often,  in  case  of  a  fire,  much  of  the  destruction  is  caused  by 
water  applied  in  efforts  to  extinguish  the  flames ;  yet,  it  is  not  doubted, 
all  that  destruction  is  caused  by  the  fire,  and  insurers  against  fixe  are 
liable  for  it."  95  U.  S.  131.  If  damage  done  by  water  thrown  on  by 
human  agency  to  put  out  a  fire  is  considered  a  direct  consequence  of 
the  fire,  surely  damage  done  by  water  entering  instantly,  by  the 
mere  force  of  graxntation,  through  a  hole  made  by  an  explosion  of  part 
of  the  cargo,  must  be  considered  as  a  direct  consequence  of  the  ex- 
plosion. 

Upon  principle  and  authority,  therefore,  our  conclusion  is  that  the 
explosion,  and  not  the  sea  water,  was  the  proximate  cause  of  the 


SECT.' I.]    RYAN  V.   NEW  YORK  CENTRAL  RAILROAD  CO.        129 

damage  to  the  sugar,  and  that  this  damage  was  not  occasioned  by  the 
perils  of  the  sea,  within  the  exceptions  in  the  bill  of  lading. 

Nor  can  the  damage  to  the  sugar,  attributable,  not  to  a  peril  of 
the  sea,  but  to  the  explosion  of  part  of  the  cargo  after  the  ship  had 
ended  her  voyage,  and  had  been  finally  and  intentionally  moored  at  the 
dock,  there  to  remain  until  her  cargo  was  taken  out  of  her,  be  considered 
as  "occasioned  by  accidents  of  na\'igation."  Canada  Shipping  Co.  r. 
British  Shipowners'  Association,  23  Q.  B.  D.  342;  The  Accomac,  15 
Prob.  Div.  208;  Thames  &  Mersey  Ins.  Co.  v.  Hamilton,  12  App.  Cas. 
484;  The  Mohawk,  above  cited. 

Much  reliance  was  placed  by  the  appellee  upon  a  recent  English 
case,  in  which  the  House  of  Lords,  reversing  the  decision  of  Lord 
Esher  and  Lords  Justices  Bowen  and  Fry  in  the  Court  of  Appeal,  and 
restoring  the  judgment  of  Lord  Justice  Lopes  in  the  Queen's  Bench 
Division,  held  that  damage  to  goods  by  sea  water  which,  without  any 
neglect  or  default  on  the  part  of  the  shipowners  or  their  servants,  found 
its  way  into  the  hold  of  a  steamship  through  a  hole  which  had  been 
gnawed  by  rats  in  a  leaden  pipe  connected  with  the  bath  room  of  the 
vessel,  was  within  the  exception  of  "dangers  or  accidents  of  the  seas" 
in  a  bill  of  lading.  Hamilton  v.  Pandorf,  12  App.  Cas.  518;  17  Q.  B. 
D.  670;  16  Q.  B.  D.  629.  There  is  nothing  in  the  report  of  any  stage 
of  that  case  to  show  that  the  sea  water  entered  the  ship  immediately 
upon  the  gnawing  by  the  rats  of  the  hole  in  the  pipe;  and  any  such 
inference  would  be  inconsistent  with  one  of  the  opinions  delivered 
in  the  House  of  Lords,  in  which  Lord  Fitzgerald  said:  "The  remote 
cause  was  in  a  certain  sense  the  action  of  the  rats  on  the  lead  pipe;  but 
the  immediate  cause  of  the  damage  was  the  irruption  of  sea  water 
from  time  to  time  through  the  injured  pipe,  caused  by  the  rolling  of  the 
ship  as  she  proceeded  on  her  voyage."  12  App.  Cas.  528.  However 
that  may  have  been,  that  case  differs  so  much  in  its  facts  from  the  case 
now  before  us,  that  it  is  unnecessary  to  consider  it  more  particularly. 

Question  certified  answered  in  the  negative.^ 

RYAN    V.    NEW   YORK    CENTRAL    RAILROAD    CO.  \j    ^,         ^ 


Court  of  Appeals  of  New  York,  1866. 

[Reported  35  A^   Y.  210.] 


4ij2^  c,^ '. 


r.r:» 


Hunt,  J.     On  the  15th  day  of  July,  1854,  in  the  city  of  Syracuse; 
the  defendant,  by  the  careless  management,  or  through  the  insufficient 
condition,  of  one  of  its  engines,  set  fire  to  its  woodshed,  and  a  large     , . 
quantity  of  wood  therein.    The  plaintiff's  house,  situated  at  a  distance-^l' 
of  one  hundred  and  thirty  feet  from  the  shed,  soon  took  fu-e  from  the     / 

1  See  also  Neale  v.  New  York  Steam  Co.,  147  N.  Y.  App.  Div.  725,  132  N.  Y. 
Supp.  71.— Ed. 


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130  RYAN   V.   NE^y   YORK    CENTRAL   RAILROAD    CO.      [CHAP.  HI. 

heat  and  sparks,  and  was  entirely  consumed,  notwithstanding  dili- 
gent efforts  were  made  to  save  it.  A  number  of  other  houses  were  also 
burned  by  the  spreading  of  the  fire.  The  phiintiff  brings  this  action 
to  recover  from  the  railroad  company  the  value  of  his  building  thus 
destroyed.  The  judge  at  the  Circuit  non-suited  the  plaintiff,  and  the 
General  Term  of  the  fifth  district  affirmed  the  judgment. 

The  question  may  be  thus  stated:  A  house  in  a  populous  city  takes 
fire,  through  the  negligence  of  the  owner  or  his  servant;  the  flames 
extend  to  and  destroy  an  adjacent  building:  Is  the  owner  of  the  first 
building  liable  to  the  second  owner  for  the  damage  sustained  by  such 
burning? 

It  is  a  general  principle  that  every  person  is  liable  for  the  conse- 
quences of  his  own  acts.  He  is  thus  liable  in  damages  for  the  proxi- 
mate results  of  his  own  acts,  but  not  for  remote  damages.  It  is  not 
easy  at  all  times  to  determine  what  are  proximate  and  what  are  re- 
mote damages.  In  Thomas  r.  \Yinchester  (2  Seld.  40S),  Judge  Ruggles 
defines  the  damages  for  which  a  party  is  liable,  as  those  which  are  the 
natiiral  or  necessary  consequences  of  his  acts.  Thus,  the  owner  of  a 
loaded  gun,  who  puts  it  in  the  hands  of  a  child,  by  whose  indiscretion 
it  is  discharged,  is  liable  for  the  injury  sustained  by  a  third  person  from 
such  discharge.  (5  Maule  &  Sel.  19S.)  The  injury  is  a  natural  and 
ordinary  result  of  the  folly  of  placing  a  loaded  gun  in  the  hands  of 
one  ignorant  of  the  manner  of  using  it,  and  incapable  of  appreciating 
its  effects.  The  owner  of  a  horse  and  cart,  who  leaves  them  unattended 
in  the  street,  is  liable  for  an  injury  done  to  a  person  or  his  property, 
by  the  running  away  of  the  horse  (Lynch  v.  Xurdin,  1  Adol.  &  Ellis, 
N.  S.,  29;  Illidge  v.  Goodin,  5  Car.  &  P.  190),  for  the  same  reason. 
The  injury  is  the  natural  result  of  the  negligence.  If  the  party  thus 
injured  had,  however,  by  the  delay  or  confinement  from  his  injury, 
been  prevented  from  completing  a  valuable  contract,  from  which 
he  expected  to  make  large  profits,  he  could  not  recover  such  expected 
profits  from  the  negligent  party,  in  the  cases  supposed.  Such  dam- 
ages would  not  be  the  necessary  or  natural  consequences,  nor  the  re- 
sults ordinarily  to  be  anticipated,  from  the  negligence  committed. 
(6  Hill,  522;  13  Wend.  601;  3  E.  D.  Smith,  144.)  So  if  an  engineer 
upon  a  steamboat  or  locomotive,  in  passing  the  house  of  A.,  so  care- 
lessly manages  its  machinery  that  the  coals  and  sparks  from  its  fires 
fall  upon  and  consume  the  house  of  A.,  the  railroad  company  or  the 
steamboat  proprietors  are  liable  to  pay  the  value  of  the  property  thus 
destroyed.  (Field  v.  X.  Y.  Central  R.  R.,  32  X.  Y.  339.)  Thus  far 
the  law  is  settled  and  the  principle  is  apparent.  If,  however,  tlie  fire 
communicates  from  the  house  of  A.  to  that  of  B.,  and  that  is  destroyed, 
is  the  negligent  party  liable  for  his  loss?  And  if  it  spreads  thence  to  the 
house  of  C,  and  thence  to  the  house  of  D.,  and  thence  consecutively 
through  the  other  houses,  until  it  reaches  and  consumes  the  house  of 
Z.,  is  the  party  liable  to  pay  the  damages  sustained  by  these  twenty- 


SECT.  I.]  RYAN    V.    NEW   YORK    CENTRAL   RAILROAD    CO.  l3l 

four  sufferers?  The  counsel  for  the  plaintiff  does  not  distinctly  claim 
this,  and  I  think  it  would  not  be  seriously  insisted  that  the  sufferers 
could  recover  in  such  case.  Where,  then,  is  the  principle  upon  which  A. 
recovers  and  Z.  fails? 

It  has  been  suggested  that  an  important  element  exists  in  the  differ- 
ence between  an  intentional  firing  and  a  negligent  firing  merely;  that 
when  a  party  designedly  fires  his  own  house  or  his  own  fallow  land, 
not  intending,  however,  to  do  any  injury  to  his  neighbor,  but  a  damage 
actually  results,  that  he  may  be  liable  for  more  extended  damages 
than  where  the  fire  originated  in  accident  or  negligence.  It  is  true 
that  the  most  of  the  cases  where  the  liability  was  held  to  exist,  were  cases 
of  an  intentional  firing.  The  case,  however,  of  Vaughn  v.  Menlove 
(32  Eng.  C.  L.  613)  was  that  of  a  spontaneous  combustion  of  a  hay- 
rick. The  rick  was  burned,  the  owner's  buildings  were  destroyed,  and 
thence  the  fire  spread  to  the  plaintiff's  cottage,  which  was  also  con- 
sumed. The  defendant  was  held  liable.  Without  deciding  upon  the 
importance  of  this  distinction,  I  prefer  to  place  my  opinion  upon  the 
ground  that,  in  the  one  case,  to  wit,  the  destruction  of  the  building  upon 
which  the  sparks  were  thrown  by  the  negligent  act  of  the  party  sought 
to  be  charged,  the  result  was  to  have  been  anticipated  the  moment 
the  fire  was  communicated  to  the  building;  that  its  destruction  was 
the  ordinary  and  natural  result  of  its  being  fired.  In  the  second,  third 
or  twenty-fourth  case,  as  supposed,  the  destruction  of  the  building  was 
not  a  natural  and  expected  result  of  the  first  firing.  That  a  building 
upon  which  sparks  and  cinders  fall  should  be  destroyed  or  seriously 
injured  must  be  expected,  but  that  the  fire  should  spread  and  other 
buildings  be  consumed,  is  not  a  necessary  or  an  usual  result.  That  it 
is  possible,  and  that  it  is  not  unfrequent,  cannot  be  denied.  The  result, 
however,  depends,  not  upon  any  necessity  of  a  further  communica- 
tion of  the  fire,  but  upon  a  concurrence  of  accidental  circumstances,  such 
as  the  degree  of  the  heat,  the  state  of  the  atmosphere,  the  condition 
and  materials  of  the  adjoining  structures  and  the  direction  of  the  wind. 
These  are  accidental  and  varying  circumstances.  The  party  has  no 
control  over  them,  and  is  not  responsible  for  their  effects. 

My  opinion,  therefore,  is,  that  this  action  cannot  be  sustained,  for 
the  reason  that  the  damages  incurred  are  not  the  immediate  but  the 
remote  result  of  the  negligence  of  the  defendants.  The  immediate 
result  was  the  destruction  of  their  own  wood  and  sheds;  beyond  that, 
it  was  remote. 

There  are  some  cases  which,  from  the  frequency  of  their  citation, 
and. their  apparent  inconsistency  with  the  view  I  have  taken,  should 
be  considered  in  this  connection.^ 

Without  determining  its  effect,  it  will  be  observed,  that  the  fact 
exists  in  each  of  these  cases,  that  the  first  act  or  impulse  was  volun- 

1  The  court  here  considered  the  cases  of  Scott  v.  Shepherd  2  W.  Bl.  893;  \'anden- 
burgh  V.  Truax,  4  Den.  464;  Guille  v.  Swan,  19  Johns.  381.—  Ed. 


132  KYAN   V.    NEW   YORK   CENTRAL   RAILROAD    CO.       [CIIAP.   III. 

tary  and  intentional  on  the  part  of  the  defendant.  Shepherd  inten- 
tionally threw  his  squib;  Truax  intentionally  drove  the  negro  boy;  and 
Swan  intentionally  descended  into  the  plaintiff's  garden  and  invoked 
the  aid  of  the  multitude.  In  each  case,  too,  the  result  was  deemed  by 
the  court  to  be  the  inevitable  consequence  of  the  original  unlawful 
or  improper  act.  There  would  seem  to  be  no  inconsistency  in  prin- 
ciple between  either  of  these  cases  and  the  conclusion  already  announced 
in  the  present  case.  Whether  the  principle  has  been  always  correctly 
applied,  it  is  not  necessary  to  determine. 

That  the  defendant  is  not  liable  in  this  action  may  also  be  strongly 
argued,  from  the  circumstance  that  no  such  action  as  the  present  has 
ever  been  sustained  in  any  of  the  courts  of  this  country,  although  the 
occasion  for  it  has  been  frequent  and  pressing.  Particular  instances  are 
familiar  to  all,  where  such  claims  might  have  been  made  with  pro- 
priety. The  instance  of  the  Harpers,  occurring  a  few  years  since,  is  a 
striking  one.  (22  N.  Y.  441).  Their  large  printing  establishment,  in 
the  city  of  New  York,  was  destroyed  by  the  gross  carelessness  of  a 
workman,  in  thrownng  a  lighted  match  into  a  vat  of  camphene.  The 
fire  extended,  and  other  buildings  and  much  other  property  was  de- 
stroyed. The  Harpers  were  gentlemen  of  wealth,  and  able  to  re- 
spond in  damages  to  the  extent  of  their  liability.  Yet  we  have  no 
report  in  the  books,  and  no  tradition,  of  any  action  brought  against 
them  to  recover  such  damages.  The  novelty  of  the  claim,  as  was  said  by 
Judge  Beardsley,  in  Costigan  v.  M.  &  H.  R.  R.  Co.,  where  the  occasion 
for  its  being  made  had  been  so  common,  is  a  strong  argument  against 
its  validity.  (2  Denio,  609.)  In  The  People  v.  Clark  (10  Barb.  143), 
Judge  Cady  says :  "  The  fact  that  the  plaintiffs  have  never  before  this 
commenced  an  action  to  vacate  a  grant  made  by  the  king,  because  it 
was  made  upon  false  suggestions,  furnishes  strong  evidence  that  the 
plaintiffs  never  had  the  right  to  bring  such  an  action."  It  was 
Littleton's  rule,  "what  never  was,  never  ought  to  be."    (1  Ver.  385.) 

To  sustain  such  a  claim  as  the  present,  and  to  follow  the  same  to  its 
legitimate  consequences,  would  subject  to  a  liability  against  which  no 
prudence  could  guard,  and  to  meet  which  no  private  fortune  would 
be  adequate.  Nearly  all  fires  are  caused  by  negligence,  in  its  extended 
sense.  In  a  country  where  wood,  coal,  gas  and  oils  are  universally 
used,  where  men  are  crowded  into  cities  and  villages,  where  servants 
are  employed,  and  where  children  find  their  home  in  all  houses,  it  is 
impossible  that  the  most  vigilant  prudence  should  guard  against 
the  occurrence  of  accidental  or  negligent  fires.  A  man  may  insure 
his  owTi  house  or  his  own  furniture,  but  he  cannot  insure  his  neighbor's 
building  or  furniture,  for  the  reason  that  he  has  no  interest  in  them. 
To  hold  that  the  own^r  must  not  only  meet  his  own  loss  by  fire,  but 
that  he  must  guarantee  the  security  of  his  neighbors  on  both  sides, 
and  to  an  unlimited  extent,  would  be  to  create  a  liability  which  would 
be  the  destruction  of  all  civilized  society.     No  community  could  long 


SECT.   I.]      SMITH   V.   LONDON   &   SOUTHWESTERN   RAILWAY   CO.         133 


exist,  under  the  operation  of  such  a  principle.  In  a  commercial  country, 
each  man,  to  some  extent,  runs  the  hazard  of  his  neighbor's  conduct, 
and  each,  by  insurance  against  such  hazards,  is  enabled  to  obtain  a 
reasonable  security  against  loss.  To  neglect  such  precaution,  and  to 
call  upon  his  neighbor,  on  whose  premises  a  fire  originated,  to  indemnify 
him  instead,  would  be  to  award  a  punishment  quite  beyond  the  offense 
committed.  It  is  to  be  considered,  also,  that  if  the  negligent  party 
is  liable  to  the  owner  of  a  remote  building  thus  consumed,  he  would  also 
be  liable  to  the  insurance  companies  who  should  pay  losses  to  such 
remote  owners.  The  principle  of  subrogation  would  entitle  the  com- 
panies to  the  benefit  of  every  claim  held  by  the  party  to  whom  a  loss 
should  be  paid. 

In  deciding  this  case,  I  have  examined  the  authorities  cited  from  the 
Year  Books,  and  have  not  overlooked  the  English  statutes  on  the 
subject,  or  the  English  decisions  extending  back  for  many  years.  It 
will  not  be  useful  further  to  refer  to  these  authorities,  and  it  will  be 
impossible  to  reconcile  some  of  them  with  the  view  I  have  taken. 

The  remoteness  of  the  damage,  in  my  judgment,  forms  the  true  rule 
on  which  the  question  should  be  decided,  and  which  prohibits  a  recovery 
by  the  plaintiff  in  this  case.^ 

Judgment  should  be  affirmed. 


^ 


SMITH  V.  LONDON  &  SOUTHWESTERN  RAILWAY  CO.  ^ 

Court  of  Common  Pleas,  1870. 


[Reported  L.  R.  6  C.  P.  14. 


) 


L 


Appeal  from  a  decision  of  the  Court  of  Common  Pleas,  discharging  /  •<   ''     ' 
a  rule  to  enter  a  verdict  for  the  defendants  or  a  non-suit. 

This  was  an  action  for  negligence,  and  the  declaration  contained 
three  counts,  of  which  the  second  and  only  material  one  was  as  fol- 
lows :  — 

"  That  at  the  time  of  the  committing  by  the  defendants  of  the  griev- 
ances in  this  count  mentioned,  the  plaintiff  was  possessed  of  a  cottage 
and  premises,  and  the  defendants  were  possessed  of  and  had  the  care 
and  management  of  a  railway  running  near  the  said  cottage  and  prem- 
ises, with  banks  belonging  thereto,  and  part  of  the  said  railway,  and 
were  possessed  of  locomotive  engines  containing  burning  substances, 
which  were  used  by  the  defendants  for  conveying  carriages  along  this  ' 
railway.  Yet,  by  the  negligence  and  improper  conduct  of  the  defend-t  ^ 
ants,  and  the  want  of  due  care  on  the  part  of  the  defendants  in  thej  ^ 

1  See  also  O'Neill  v.  New  York  O.  &  W.  Ry.,  116  N.  Y.  579,  22  N.  E.  217;  Read    '  '  '^ 
t.  Nicholas,  lis  N.  Y.  224,  23  N.  E.  468;  Hoag  t.  Lake  Shore  &  M.  S.  ^.  R.,  85  Pa. 
293.— Ed.  :  ' 


^  /^JAmI/X 


134      SMITH   V.  LONDON   &   SOLTTHWESTERN    RAILWAY   CO.       [CHAP.  III. 

keeping  and  management  of  their  said  railway  engines  and  banks, 
quantities  of  cut  grass  and  hedge  trimmings  were  heaped  up  on  the 
said  railway  and  banks,  and  became  and  were  ignited,  and  a  fire  was 
occasioned  which  spread  over  and  along  a  stubble-field,  near  the  said 
railway  unto  the  said  cottage  and  premises,  and  set  fire  to  the  same, 
and  thereby  the  same  and  the  plaintiff's  furniture,  &c.,  then  being  in 
and  near  the  said  cottage  and  premises,  were  burnt  and  destroyed, 
and  the  plaintiff  lost  the  use  and  enjoyment  of  the  same." 

The  defendants  pleaded  not  guilty,  and  issue  was  joined  thereon. 

The  case  was  tried  before  Keating,  J.,  at  the  summer  assizes,  1869, 
held  at  Dorchester,  when  evidence  was  given  for  the  plaintiff,  which 
was   in    substance   as   follows :  — 

It  was  proved  that  the  defendants'  railway  passed  near  the  plaintiff's 
cottage,  and  that  a  small  strip  of  grass  extended  for  a  few  feet  on 
each  side  of  the  line,  and  was  bounded  by  a  hedge  which  formed  the 
boundary  of  the  defendants'  land;  beyond  the  hedge  was  a  stubble- 
field,  bounded  on  one  side  by  a  road,  beyond  which  was  the  plaintiff's 
cottage.  About  a  fortnight  before  the  fire  the  defendants'  servants 
had  trimmed  the  hedge  and  cut  the  grass,  and  left  the  trimmings  and 
cut  grass  along  the  strip  of  grass.  On  the  morning  of  the  fire  the  com- 
pany's servants  had  raked  the  trimmings  and  cut  grass  into  small 
heaps.  The  summer  had  been  exceedingly  dry,  and  there  had  been 
many  fires  about  in  consequence.  On  the  day  in  question,  shortly 
after  two  trains  had  passed  the  spot,  a  fire  was  discovered  upon  the 
strip  of  grass  land  forming  part  of  the  defendants'  property;  the  fire 
spread  to  the  hedge  and  burnt  through  it,  and  caught  the  stubble-field, 
and,  a  strong  wind  blowing  at  the  time,  the  flames  ran  across  the  field  for 
200  yards,  crossed  the  road,  and  set  fire  to  and  burnt  the  plaintiff's 
cottage.  There  was  no  evidence  that  the  defendants'  engines  were 
improperly  constructed  or  worked;  there  was  no  evidence  except  the 
fact  that  the  engines  had  recently  passed,  to  show  that  the  fire  origi- 
nated from  them.  There  was  no  evidence  whether  the  fire  originated 
in  one  of  the  heaps  of  trimmings  or  on  some  other  part  of  the  grass 
by  the  side  of  the  line ;  but  it  was  proved  that  several  of  the  heaps  were 
burnt  by  the  fire.  Two  of  the  company's  servants  were  proved  to 
have  been  close  to  the  spot  when  the  fire  broke  out,  and  to  have  given 
the  alarm,  but  they  were  not  called  by  either  side. 

At  the  close  of  the  plaintiff's  case  the  counsel  for  the  defendants  sub- 
mitted that  there  was  no  case  to  go  to  the  jury.  At  the  suggestion 
of  the  judge,  and  by  consent,  a  verdict  was  taken  for  the  plaintiff  for 
30/.,  subject  to  leave  reserved  to  the  defendants  to  move  to  set  it  aside, 
and  instead  thereof  to  enter  a  verdict  for  them,  on  the  ground  that 
there  was  no  evidence  to  go  to  the  jury  of  any  liability  on  the  part  of  the 
defendants.  The  court  to  be  at  liberty  to  draw  inferences  and  to  amend 
the  pleadings. 

The  defendants  applied  for  and  obtained  a  rule  pursuant  to  the 


SECT.  I.]       SMITH    V.   LONDON    &    SOUTHWESTERN   RAILWAY   CO.         135 


leave  reserved,  which,  after  argument,  was  discharged,  and  from  the 
judgment  so  given  discharging  the  rule  the  present  appeal  was  brought. 

Kingdon,  Q.  C.  {Murch  with  him),  for  the  defendants.  There  is  no 
evidence  that  the  trimmings  was  the  cause  of  the  fire.  It  was  proved 
that  they  were  partially  consumed  by  it,  but  not  that  it  originated  in 
them.  Nor  was  there  any  evidence  that  the  fire  was  caused  by  sparks 
coming  from  the  engine.  There  were  many  other  ways  in  which  it 
may  have  begun  which  are  equally  consistent  with  the  evidence.  Thus, 
a  fusee  may  have  been  thrown  from  a  window  of  one  of  the  carriages 
of  the  train,  or  one  of  their  workmen  on  the  line  may  have  dropped  a 
spark  from  his  pipe.  WTiere  the  evidence  is  equally  consistent  with  the 
view  that  the  defendants  were  liable,  and  that  they  were  not,  there  is 
no  evidence  to  go  to  the  jury. 

Kelly,  C.  B.  I  certainly  entertained  some  doubts  during  the  argu- 
ment as  to  whether  the  judgment  of  the  Court  below  could  be  sustained; 
but  when  I  consider  the  facts,  I  cannot  but  feel  that  it  is  a  case  in  which 
there  was  some  evidence  of  negligence  on  the  part  of  the  defendants, 
and  negligence  which  caused  the  injury  complained  of.  It  appears 
that  about  the  time  that  the  spot  in  question  was  passed  by  an  engine 
which,  as  we  know,  would  emit  sparks  which  would  fall  on  the  adjoin- 
ing ground,  a  fire  was  discovered  on  the  defendants'  ground  adjoin- 
ing the  line.  It  appears  that  it  had  been  a  dry  summer,  and  the  hot 
weather  had  continued  for  many  weeks  before  the  occurrence;  and 
probably  with  a  view  to  prevent  mischief,  the  defendants  had  caused 
the  grass  that  grew  by  the  line  and  the  fence  to  be  cut,  and  the  cuttings 
of  the  grass  and  hedge  were  placed  in  small  heaps  on  the  ground  between 
the  rails  and  the  hedge.  On  the  other  side  of  the  hedge  was  a  stubble- 
field  of  considerable  extent  which  would  be  extremely  dry,  and  at  a  dis- 
tance of  two  hundred  yards  across  a  road  was  the  cottage  belonging  to 
the  plaintiff.  This  was  the  state  of  facts.  The  trimmings  caught  fire, 
there  was  a  strong  south-east  wind  blowing;  and  though  we  have  no 
proof  of  the  exact  progress  of  the  fire,  because  the  company's  servants 
who  had  seen  it  were  not  called,  it  appears  to  have  extended  to  and 
through  the  hedge  and  across  the  field  to  the  plaintiff's  cottage  which 
was  burnt.  The  question  for  us  is,  how  all  this  occurred.  There  is 
some  doubt  how  the  fire  originated,  but  there  was  ample  evidence 
for  the  jury,  which  would  have  been  rightly  left  to  them,  that  it  ori- 
ginated from  sparks  from  the  engine  falling  on  the  dry  heaps  of  trim- 
mings, and  thence  extending  to  the  hedge  and  stubble-field.  If  that 
was  so,  the  question  arises  whether  there  was  any  negligence  in  the 
defendants. 

Now  it  can  scarcely  be  doubted  that  the  defendants  were  bound 
in  such  a  summer,  knowing  that  trains  were  passing  from  which 
sparks  might  fall  upon  them,  to  remove  these  heaps  of  trimmings ;  and, 
at  any  rate,  it  was  a  question  for  the  jury  whether  it  was  not  negligent 
of  them  not  to  do  so.    I  think,  therefore,  there  was  a  case  for  the  jury 


136     SMITH    V.  LONDON   &   SOUTHWESTERN   RAILWAY    CO.      [CHAP.  III. 

on  which  they  might  reasonably  have  found  that  the  defendants  were 
negUgent  in  not  removing  the  trimmings  as  soon  as  possible,  and  that 
this  was  the  cause  of  the  injury.  Then  comes  the  question  raised  by 
Brett,  J.,  to  which  at  first  I  was  inclined  to  give  some  weight.  He  puts 
it  thus:  "I  quite  agree  that  the  defendants  ought  to  have  anticipated 
that  sparks  might  be  emitted  from  their  engines,  notwithstanding  that 
they  were  of  the  best  construction,  and  were  worked  without  negligence, 
and  that  they  might  reasonably  have  anticipated  that  the  rummage  and 
hedge  trimmings  allowed  to  accummulate  might  be  thereby  set  on  fire. 
But  I  am  of  opinion  that  no  reasonable  man  would  have  foreseen  that 
the  fire  would  consume  the  hedge  and  pass  across  a  stubble-field,  and  so 
get  to  the  plaintiff's  cottage  at  the  distance  of  200  yards  from  the  rail- 
way, crossing  a  road  in  its  passage."  It  is  because  I  thought,  and  still 
think,  the  proposition  is  true  that  any  reasonable  man  might  well  have 
failed  to  anticipate  such  a  concurrence  of  circumstances  as  is  here 
described  that  I  felt  pressed  at  first  by  this  view  of  the  question;  but 
on  consideration  I  do  not  feel  that  that  is  a  true  test  of  the  liability  of 
the  defendants  in  this  case.  It  may  be  that  they  did  not  anticipate, 
and  were  not  bound  to  anticipate,  that  the  plaintiff's  cottage  would  be 
burnt  as  a  result  of  their  negligence;  but  I  think  the  law  is,  that  if 
they  were  aware  that  these  heaps  were  lying  by  the  side  of  the  rails, 
and  that  it  was  a  hot  season,  and  that  therefore  by  being  left  there  the 
heaps  were  likely  to  catch  fire,  the  defendants  were  bound  to  pro\dde 
against  all  circumstances  which  might  result  from  this,  and  were 
responsible  for  all  the  natural  consequences  of  it.  I  think,  then,  there 
was  negligence  in  the  defendants  in  not  remo\ang  these  trimmings,  and 
that  they  thus  became  responsible  for  all  the  consequences  of  their  con- 
duct, and  that  the  mere  fact  of  the  distance  of  this  cottage  from  the 
point  where  the  fire  broke  out  does  not  affect  their  liability,  and  that  the 
judgment  of  the  Court  below  must  be  affirmed. 

Martin,  B,  I  am  of  the  same  opinion.  The  only  question  we  have 
to  decide  is,  whether  there  was  any  evidence  for  the  jury  of  negligence 
on  the  part  of  defendants  which  caused  the  injury  complained  of. 
The  facts  are,  that  the  plaintiff  had  a  cottage  near  the  railway,  and 
that  he  was  perfectly  innocent  of.  any  thing  that  could  conduce  to 
his  loss,  and  that  he  had  his  house  burned  dowTi.  The  question  is,  did 
the  fire  come  there  from  any  negligent  act  of  the  defendants?  I  think 
there  is  evidence  that  it  did.  There  was  evidence  of  the  trimmings 
being  improperly  left  by  the  defendants  by  the  side  of  their  line,  and 
that  a  spark  from  a  passing  engine  fell  on  them  and  caused  the  fire, 
which  was  thus  due  to  the  defendant's  negligence. 
Bramwell,  B.,  concurred. 

Channell,  B.  I  am  of  the  same  opinion.  I  quite  agree  that  where 
there  is  no  direct  evidence  of  negligence,  the  question  what  a  reason- 
able man  might  foresee  is  of  importance  in  considering  the  question 
whether  there  is  evidence  for  the  jury  of  negligence  or  not,  and  this  is 


1 


SECT.  I.]      SMITH   V.  LONDON   &   SOUTHWESTERN   KAILWAT   CO.         137 

what  is  meant  by  Bramwell,  B.,  in  his  judgment  in  Blyth  v.  Birming- 
ham Waterworks  Co.,  11  Ex.  781;  25  L.  J.  (Ex.)  212,  referred  to  by 
Mr.  Kingdon;  but  when  it  has  been  once  determined  that  there  is  evi- 
dence of  negUgence,  the  person  guilty  of  it  is  equally  liable  for  its  con- 
sequences, whether  he  could  have  foreseen  them  or  not. 

Blackburn,  J.  I  also  agree  that  what  the  defendants  might  reason- 
ably anticipate  is,  as  my  Brother  Channel  has  said,  only  material  with 
reference  to  the  question  whether  the  defendants  were  negligent  or  not, 
and  cannot  alter  their  liability  if  they  were  guilty  of  negligence.  I 
have  still  some  doubts  whether  there  was  any  evidence  that  they  were 
negligent,  but  as  all  the  other  judges  are  of  opinion  that  there  was 
evidence  that  they  were,  I  am  quite  content  that  the  judgment  of  the 
Court  below  should  be  affirmed.  I  do  not  dissent,  but  I  have  some 
doubt,  and  will  state  from  what  my  doubt  arises.  I  take  it  that,  since 
the  case  of  Vaughan  v.  Taff  Vale  Ry.  Co.,  5  H.  &  N.  679;  29  L.  J.  (Ex.) 
247,  which  was  expressly  affirmed  in  Brand  v.  Hammersmith  Ry. 
Co.,  Law  Rep.  4  H.  L.  171,  it  is  clear  that  when  a  railway  company 
is  authorized  by  their  Act  of  Parliament  to  run  engines  on  their  line, 
and  that  cannot  be  done  without  their  emitting  sparks,  the  com- 
pany are  not  responsible  for  injuries  arising  therefrom,  unless  there  is 
some  evidence  of  negligence  on  their  part.  That  being  so,  I  agree 
that  if  they  have  the  land  at  the  edge  of  the  line  in  their  ovm  occupa- 
tion they  ought  to  take  all  reasonable  care  that  nothing  is  suffered  to 
remain  there  which  would  increase  the  danger.  Then  comes  the  ques- 
tion, is  there  evidence  enough  in  this  case  of  a  want  of  that  reasonable 
care?  It  can  hardly  be  negligent  not  to  provide  against  that  which  no 
one  would  anticipate.  I  have  no  doubt  that  if  the  company  strewed 
any  thing  very  inflammable,  such  as,  to  put  an  extreme  case,  petroleum 
along  the  side  of  their  line,  they  would  be  guilty  of  negligence.  The 
reasoning  for  the  plaintiff  is  that  the  dry  trimmings  were  of  an  inflam- 
mable character  and  likely  to  catch  fire.  My  doubt  is,  whether,  since 
the  trimmings  were  on  the  verge  of  the  railway  on  the  company's  land, 
if  the  quickset  hedge  had  been  in  its  ordinary  state,  they  might  not 
have  burned  only  on  the  company's  premises,  and  done  no  further  harm, 
and  whether  the  injury,  therefore,  was  not  really  caused  by  the  hedge 
being  dry,  so  that  it  caught  fire,  and  by  the  fire  thus  spreading  to  the 
stubble-field,  and  thence  to  the  plaintiff's  cottage.  I  think  it  is  clear 
that  when  the  company  were  planning  the  railway  they  could  not  ex- 
pect that  the  hedge  would  become  so  dry,  and  therefore  were  not  neg- 
ligent in  putting  a  hedge  instead  of  a  stone  wall;  and  though  the 
drought  had  lasted  some  weeks,  I  can  hardly  think  it  was  negligent  in 
them  not  to  remove  the  hedge.  I  do  not  say  that  there  is  not  much  in 
what  is  said  with  respect  to  the  trimmings  being  the  cause  of  the  injury, 
and  not  the  state  of  the  hedge,  but  I  doubt  on  this  point,  and,  therefore 
doubt  if  there  was  evidence  of  negligence;  if  the  negligence  were  once 
estabUshed,  it  would  be  no  answer  that  it  did  much  more  damage  than 


138  HOYT   V.    JEFFERS.  [CHAP.  III. 

was  expected.  If  a  man  fires  a  gun  across  a  road  where  he  may  reason- 
ably anticipate  that  persons  will  be  passing,  and  hits  some  one,  he  is 
guilty  of  negligence,  and  liable  for  the  injury  he  has  caused;  but  if  he 
fires  in  his  own  wood,  where  he  cannot  reasonably  anticipate  that  any 
one  will  be,  he  is  not  liable  to  any  one  whom  he  shoots,  which  shows 
that  what  a  person  may  reasonably  anticipate  is  important  in  consid- 
ering whether  he  has  been  negligent;  l)ut  if  a  person  fires  across  a 
road  when  it  is  dangerous  to  do  so  and  kills  a  man  who  is  in  receipt 
of  a  large  income,  he  will  be  liable  for  the  whole  damage,  however 
great,  that  may  have  resulted  to  his  family,  and  cannot  set  up  that  he 
could  not  have  reasonably  expected  to  have  injured  any  one  but  a 
labourer. 

PiGOTT,  B.  I  am  of  the  same  opinion.  I  had  some  doubts  at  first, 
but  in  the  result  I  am  of  the  same  opinion  as  is  expressed  by  Keat- 
ing, J.,  in  his  judgment  in  the  court  below.  He  says  that  he  was  pressed 
with  the  consideration  that  leaving  some  very  inflammable  sub- 
stance along  the  side  of  the  line  where  trains  were  frequently  passing 
was  some  ex-idence  of  negligence.  It  comes  to  this,  that  in  a  dry 
summer,  with  a  knowledge  of  the  risk  of  fire  which  must  be  caused, 
the  defendants  left  heaps  of  combustible  matter  along  the  side  of  their 
line;  then  whether  the  fire  did  arise  from  those  heaps  was  a  question 
for  the  jury,  and  it  seems  clear  that  it  either  came  from,  or  was  at  any 
rate  increased  by,  the  heaps,  and  so  got  through  the  fence  to  the  field, 
and  when  once  in  the  field  there  was  no  way  to  stop  it  till  it  burned 
the  plaintiff's  cottage,  and  this,  as  it  seems  to  me,  was  nothing  but  what 
a  reasonable  man  might  have  anticipated. 

Lush,  J.  I  am  also  of  opinion  that  there  was  evidence  from  which 
a  jury  might  properly  conclude  that  the  fire  originated  from  the  sparks 
falling  from  the  engine,  and  that  the  heaps  added  to  its  intensity,  and 
thus  caused  it  to  burn  the  hedge  and  stubble;  and  I  confess  it  seems 
to  me  that  the  more  likely  the  hedge  was  to  take  fire,  the  more  in- 
cumbent it  was  upon  the  company  to  take  care  that  no  inflammable 
material  remained  near  to  it.^  ■ 

Judgment  affirmed. 


HOYT  V.  JEFFERS. 
Supreme  Court  of  Michigan,  1874. 

[Reporfed  30  Mich.  181.] 

Christiancy,  J.  JeflPers  brought  his  action  against  Hoyt  in  the 
circuit  court  for  the  county  of  Saginaw. 

The  declaration  sets  forth,  substantially,  in  the  first  count,  that 
plaintiff,  on  the  17th  August,  1870,  being  the  owner  of  lot  1,  block  19, 

»  See  Louisville  X.  A.  &  C.  Ry.  v.  Xitsche,  126  Ind.  229,  26  N.  E.  51.—  Ed. 


SECT.  I.]  HOYT  jy.  JEFFERS.  139 

Hoyt's  plat  of  the  city  of  East  Saginaw,  together  with  the  frame 
buildings  thereon  situate  (which  the  e\'idence  shows  to  have  been  a 
hotel  called  the  Sherman  House,  a  barn,  shed  and  wash-house,  on  the 
same  lot,  used  with  the  hotel),  of  the  value  of  ten  thousand  dollars; 
and  the  defendant  being  the  owner,  and  running  and  operating  a  steam 
saw-mill,  situated  on  block  four  of  the  same  plat,  distant  about  three 
hundred  feet  southwesterly  from  plaintiff's  property,  he  (the  defend- 
ant), in  running  and  operating  the  steam  saw-mill,  used  large  fires, 
which  emitted  and  gave  off  large  quantities  of  sparks  of  fire  through 
the  chimney;  that  it  was  the  duty  of  defendant  to  have  used  upon  said 
chimney  a  spark-catcher,  which  would  have  prevented  the  escape  of 
such  sparks,  or  in  some  other  way  to  have  prevented  their  escape,  so 
that  the  fire  would  not  be  thereby  communicated  to  the  property  of 
the  plaintiff;  yet  the  defendant,  knowing  the  premises,  and  that 
sparks  of  fire  had  been  repeatedly  thrown  from  said  mill  upon  the  prop- 
erty of  the  plaintiff,  and  that  his  buildings  had  been  repeatedly  set 
on  fire  by  such  sparks,  omitted  to  do  his  duty  in  that  behalf,  and 
negligently  suffered  the  top  of  the  chimney  of  his  said  mill  to 
remain  open,  without  a  spark-catcher  thereon,  and  without  using 
any  adequate  means  to  prevent  the  escape  of  sparks  from  the 
chimney;  and  while  defendant,  his  agents  and  servants,  were  run- 
ning and  operating  the  mill,  to  wit,  etc.,  sparks  of  fire  from  the 
chimney  of  said  mill  were  thrown  upon  the  plaintiff's  buildings,  and 
said  buildings  were  thereby  set  on  fire  and  totally  consumed,  to  plain- 
tiff's damage,  etc. 

The  second  count  more  particularly  describes  the  plaintiff's  buildings, 
and  gives  their  distance  from  the  mill,  as  "to  wit:  two  hundred 
feet.   .   .   ."1 

The  only  remaining  exception  which  requires  notice  is  to  that  por- 
tion of  the  charge  in  which  the  court  says  to  the  jury,  after  fairly  sub- 
mitting the  question  of  the  burning  of  the  Sherman  House  through 
defendant's  negligence,  "  If  you  find  as  a  fact  that  the  fire  passed  from 
the  building  to  the  other  property  of  the  plaintiff  upon  the  same  lot,  and 
immediately  adjoining,  without  any  other  cause  than  simply  the  fire 
naturally  burning  and  consuming  the  first  building,  you  should  give, 
in  addition  to  the  value  of  the  first  building,  the  value  of  the  other 
buildings  destroyed,  situate  there  upon  the  propert;>',  with  interest,  the 
same  as  the  other,  from  the  time  of  its  destruction."  This  charge  must 
be  understood  with  reference  to  the  evidence,  which  showed  that  the 
woodshed  of  the  house  separated  the  barn  from  the  house,  that  the 
barn  was  about  five  feet  from  the  shed,  and  the  wash-house  about  six 
feet  from  the  barn,  and  all  were  of  wood. 

In  viev>^  of  the  facts,  the  very  statement  of  the  proposition  contended 
for  by  the  plaintiff  in  error,  must,  upon  every  sound  principle,  be  held  to 
carry  with  it  its  own  refutation.    As  well  might  it  be  contended  that, 

^  So  much  of  the  case  as  involves  the  question  of  negligence  is  omitted. —  Ed. 


140  HOYT   V.   JEFFERS.  [CHAP.  III. 

because  the  fire  caught  in  a  particular  spot  on  the  outside  of  the  Sher- 
man House,  which  was  the  only  direct  result  of  the  negligent  use  of 
defendant's  chimney,  he  could  not  be  held  for  the  burning  of  the  inside 
of  the  house,  or  any  portion  of  the  outside  which  caught  only  by  the 
spread  of  the  fire  first  kindled  by  the  sparks. 

If  we  are  to  refine  upon  questions  of  this  kind,  in  defiance  of  practical 
common  sense,  the  defendant's  liability  might  just  as  well,  upon  strict 
scientific  principles,  be  confined  to  still  narrower  limits.  The  argument 
is,  that,  though  defendant  may  be  liable  for  the  loss  of  the  particular 
building  first  set  on  fire  through  his  negligence,  and  such  others  as  are 
in  actual  contact  with  it,  yet,  his  liability  cannot  be  extended  to  others 
not  in  such  actual  contact,  or  where  there  is  an  intervening  space, 
however  small,  between  them.  Now,  it  is  so  well  settled  as  to  be  treated 
almost  as  an  axiom  in  natural  philosophy,  that  no  two  particles  of 
matter  actually  touch  each  other,  and  that  there  is  always  an  inter- 
vening space  between  them.  The  defendant's  liability  must,  therefore, 
be  confined  to  the  particular  particle  or  particles  of  matter  which  actu- 
ally first  caught  fire,  and  the  whole  conflagration  resulting,  not  only  of 
the  remainder  of  the  particular  board  or  shingle,  but  of  the  house,  must 
be  treated  as  a  new  consequential  injury  too  remote  to  serve  as  a  safe 
ground  of  damages. 

This,  it  may  be  said,  is  unreasonable,  and  ludicrously  absurd;  and 
so  it  is;  but  it  is  slightly  more  absurd  or  ludicrous  than  it  would  be 
to  hold  that  defendant's  liability  must  be  limited  to  the  first  building 
burned,  because  the  others  were  not  a  part  of  it,  or  in  actual  contact 
wuth  it,  but  five  or  six  feet  distant.  If  such  other  buildings  are  satis- 
factorily shown  to  have  been  actually  burned  by  the  fire  of  the  Sher- 
man House,  caused  by  the  negligence  of  the  defendant,  and  especially 
if  this  was,  under  the  circumstances,  the  natural  and  probable,  as 
wnell  as  the  actual  result  of  the  fire  so  caused,  and  without  any  con- 
tributory negligence  of  the  plaintiff,  I  can  see  no  sound  principle 
which  can  make  the  defendant's  liability  turn  upon  the  question 
whether  the  buildings  thus  burned  by  the  fire  of  the  first,  were  five, 
six,  or  fifty  feet,  or  the  one-hundredth  part  of  an  inch  from  it. 

And  though  a  building  thus  burned  by  the  fire  of  the  first  might 
be  at  such  a  distance  that  its  taking  fire  from  the  first  might  not,  a 
priori,  have  seemed  possible,  yet,  if  it  be  satisfactorily  shown  that  it 
did,  in  fact,  thus  take  fire,  without  any  negligence  of  the  owner,  and 
without  the  fault  of  some  third  party,  which  could  properly  be  recog- 
nized as  the  proximate  cause,  and  for  which  he  could  be  held  liable, 
the  principle  of  justice  or  sound  logic,  if  there  be  any,  is  very  obscure, 
which  can  exempt  the  party  through  whose  negligence  the  first  building 
was  burned,  from  equal  liability  for  the  burning  of  the  second.  If 
it  be  said  that  this  extent  of  liability  might  prove  ruinous  to  the  party 
through  whose  negligence  the  buildings  were  burned,  it  may  be  said, 
in  reply,  that,  under  such  circumstances,  it  is  better,  and  more  in  ac- 


SECT.  I.]      MILWAUKEE    &   ST.    PAUL   RAILWAY   CO.   V.    KELLOGG.      141 

cordance  with  the  relative  rights  of  others,  that  he  should  be  ruined 
by  his  negUgence,  than  that  he  should  be  allowed  to  ruin  others  who 
are  innocent  of  all  negligence  or  wrong. 

I  see  no  error  in  the  record,  and  the  judgment  should  be  affirmed, 
with   costs.^ 

The  other  justices  concurred. 


MILWAUKEE  &  ST.  PAUL  RAILWAY  CO.  v.  KELLOGG. 
Supreme  Court  of  the  United  States,  1876. 

[Reported  94  U.  S.  469.] 

Strong,  J.  This  was  an  action  to  recover  compensation  for  the 
destruction  by  fire  of  the  plaintiff's  saw  mill  and  a  quantity  of  lumber, 
situated  and  lying  in  the  State  of  Iowa,  and  on  the  banks  of  the  river 
Mississippi.  That  the  property  was  destroyed  by  fire  was  uncontro- 
verted.  From  the  bill  of  exceptions,  it  appears  that  the  "plaintiff  al- 
leged the  fire  was  negligently  communicated  from  the  defendant's 
steamboat  'Jennie  Brown'  to  an  elevator  built  of  pine  lumber,  and 
one  hundred  and  twenty  feet  high,  owned  by  the  defendants,  and 
standing  on  the  bank  of  the  river,  and  from  the  elevator  to  the  plain- 
tiff's saw  mill  and  lumber  piles,  while  an  unusually  strong  wind  was 
blowing  from  the  elevator  towards  the  mill  and  lumber.  On  the  trial, 
it  was  admitted  that  the  defendants  owned  the  steamboat  and  elevator; 
that  the  mill  was  five  hundred  and  thirty-eight  feet  from  the  elevator, 
and  that  the  nearest  of  plaintiff's  piles  of  lumber  was  three  hundred 
and  eighty-eight  feet  distant  from  it.  It  was  also  admitted  that  there 
was  conflict  between  the  parties  plaintiff  and  defendant  respecting  the 
ownership  of  the  land  where  the  mill  stood  and  the  lumber  was  piled, 
both  claiming  under  a  common  source  of  title.  The  plaintiff  had  built 
the  mill,  and  he  was  in  the  occupation  of  it,  believing  he  had  a  right  to 
be  there.  .  .  ."  ^ 

The  next  exception  is  to  the  refusal  of  the  court  to  instruct  the  jury 
as  requested,  that  "  if  they  believed  the  sparks  from  the  '  Jennie  Brown ' 
set  fire  to  the  elevator  through  the  negligence  of  the  defendants,  and 
the  distance  of  the  elevator  from  the  nearest  lumber  pile  was  three 
hundred  and  eighty-eight  feet,  and  from  the  mill  five  hundred  and 
twenty-eight  feet,  then  the  proximate  cause  of  the  burning  of  the  mill 
and  lumber  was  the  burning  of  the  elevator,  and  the  injury  was  too 
remote  from  the  negligence  to  afford  a  ground  for  a  recovery."  This 
proposition  the  court  declined  to  affirm,  and  in  lieu  thereof  submitted 
to  the  jury  to  find  whether  the  burning  of  the  mill  and  lumber  was  the 
result  naturally  and  reasonably  to  be  expected  from  the  burning  of 

1  See  Martin  v.  New  York  &  N.  E.  R.  R.,  62  Conn.  331,  25  Atl.  239.—  Ed. 
^  Part  of  the  opinion  is  omitted. —  Ed. 


142      MILWAUKEE    &   ST.    PAUL   KAILWAY   CO.  V.   KELLOGG.     [CHAP.  IH. 

the  elevator;  whether  it  was  a  result  which,  under  the  circumstances, 
would  naturally  follow  from  the  burning  of  the  elevator;  and  whether 
it  was  the  result  of  the  continued  effect  of  the  sparks  from  the  steam- 
boat, without  the  aid  of  other  causes  not  reasonably  to  be  expected. 
All  this  is  alleged  to  have  been  erroneous.  The  assignment  presents 
the  oft-embarrassing  question,  What  is  and  what  is  not  the  proximate 
cause  of  an  injury?  The  point  propounded  to  the  court  assumed  that 
it  was  a  question  of  law  in  this  case;  and  in  its  support  the  two  cases 
of  Ryan  v.  The  New  York  Central  Railroad  Co.,  35  N.  Y.  210,  and  Kerr 
V.  Pennsylvania  Railroad  Co.,  62  Penn.  St.  353,  are  relied  upon.  Those 
cases  have  been  the  subject  of  much  criticism  since  they  were  decided; 
and  it  may,  perhaps,  be  doubted  whether  they  have  always  been  quite 
understood.  If  they  were  intended  to  assert  the  doctrine  that  when 
a  building  has  been  set  on  fire  through  the  negligence  of  a  party,  and 
a  second  building  has  been  fired  from  the  first,  it  is  a  conclusion  of 
law  that  the  owner  of  the  second  has  no  recourse  to  the  negligent  wrong- 
doer, they  have  not  been  accepted  as  authority  for  such  a  doctrine, 
even  in  the  States  where  the  decisions  were  made.  Webb  v.  The  Rome, 
Watertown  &  Ogdensburg  Railroad  Co.,  49  N.  Y.  420,  and  Pennsyl- 
vania Railroad  Co.  v.  Hope,  80  Penn.  St.  373.  And  certainly  they  are 
in  conflict  with  numerous  other  decided  cases.  Kellogg  v.  The  Chicago 
&  North-western  Railroad  Co.,  26  Wis.  224;  Perley  v.  The  Eastern 
Railroad  Co.,  98  Mass.  414;  Higgins  v.  Dewey,  107  id.  494;  Tent  v. 
The  Toledo,  Peoria  &  Warsaw  Railroad  Co.,  49  III.  349. 

The  true  rule  is,  that  what  is  the  proximate  cause  of  an  injury  is 
ordinarily  a  question  for  the  jmy.  It  is  not  a  question  of  science  or  of 
legal  knowledge.  It  is  to  be  determined  as  a  fact,  in  view  of  the  cir- 
cumstances of  fact  attending  it.  The  primary  cause  may  be  the  proxi- 
mate cause  of  a  disaster,  though  it  may  operate  through  successive 
inst^'uments,  as  an  article  at  the  end  of  a  chain  may  be  moved  by  a 
force  applied  to  the  other  end,  that  force  being  the  proximate  cause  of 
the  movement,  or  as  in  the  oft-cited  case  of  the  squib  thrown  in  the  mar- 
ket place.  2  Bl.  Ptep.  892.  The  question  always  is,  W^as  there  an  un- 
broken connection  between  the  wrongful  act  and  the  injury,  a  continu- 
ous operation?  Did  the  facts  constitute  a  continuous  succession  of 
events,  so  linked  together  as  to  make  a  natural  whole,  or  was  there 
some  new  and  independent  cause  intervening  between  the  wrong  and 
the  injury?  It  is  admitted  that  the  rule  is  difficult  of  application. 
But  it  is  generally  held,  that,  in  order  to  warrant  a  finding  that  negli- 
gence, or  an  act  not  amounting  to  wanton  wrong,  is  the  proximate 
cause  of  an  injury,  it  must  appear  that  the  injury  was  the  natural  and 
probable  consequence  of  the  negligence  or  wrongful  act,  and  that  it 
ought  to  have  been  foreseen  in  the  light  of  the  attending  circumstances. 
These  circumstances,  in  a  case  like  the  present,  are  the  strength  and 
direction  of  the  wind,  the  combustible  character  of  the  elevator,  its 
great  height,  and  the  proximity  and  combustible  nature  of  the  saw 


SECT.  I.]      MILWAUKEE    &    ST.    PAUL   KAILWAY   CO.    V.   KELLOGG.       143 

mill  and  the  piles  of  lumber.  Most  of  these  circumstances  were  ig- 
nored in  the  request  for  instruction  to  the  jury.  Yet  it  is  obvious 
that  the  immediate  and  inseparable  consequences  of  negligently  firing 
the  elevator  would  have  been  very  different  if  the  wind  had  been  less, 
if  the  elevator  had  been  a  low  building  constructed  of  stone,  if  the 
season  had  been  wet,  or  if  the  lumber  and  the  mill  had  been  less  com- 
bustible. And  the  defendants  might  well  have  anticipated  or  regarded 
the  probable  consequences  of  their  negligence  as  much  more  far-reach- 
ing than  would  have  been  natural  or  probable  in  other  circumstances. 
We  do  not  say  that  even  the  natural  and  probable  consequences  of  a 
wrongful  act  or  omission  are  in  all  cases  to  be  chargeable  to  the  mis- 
feasance or  nonfeasance.  They  are  not  when  there  is  a  sufficient  and 
independent  cause  operating  between  the  wrong  and  the  injury. 
In  such  a  case  the  resort  of  the  sufferer  must  be  to  the  originator  of  the 
intermediate  cause.  But  when  there  is  no  intermediate  efficient  cause, 
the  original  wrong  must  be  considered  as  reaching  to  the  effect,  and 
proximate  to  it.  The  inquiry  must,  therefore,  always  be  whether 
there  was  any  intermediate  cause  disconnected  from  the  primary  fault, 
and  self-operating,  which  produced  the  injury.  Here  lies  the  difficulty. 
But  the  inqury  must  be  answered  in  accordance  with  common  under- 
standing. In  a  succession  of  dependent  events  an  interval  may  always 
be  seen  by  an  acute  mind  between  a  cause  and  its  effect,  though  it 
may  be  so  imperceptible  as  to  be  overlooked  by  a  common  mind. 
Thus,  if  a  building  be  set  on  fire  by  negligence,  and  an  adjoining  build- 
ing be  destroyed  without  any  negligence  of  the  occupants  of  the  first, 
no  one  would  doubt  that  the  destiTJction  of  the  second  was  due  to  the 
negligence  that  caused  the  burning  of  the  first.  Yet  in  truth,  in  a 
very  legitimate  sense,  the  immediate  cause  of  the  burning  of  the 
second  was  the  burning  of  the  first.  The  same  might  be  said  of  the 
burning  of  the  furniture  in  the  first.  Such  refinements  are  too  minute 
for  rules  of  social  conduct.  In  the  nature  of  things,  there  is  in  every 
transaction  a  succession  of  events,  more  or  less  dependent  upon  those 
preceding,  and  it  is  the  province  of  a  jury  to  look  at  this  succession 
of  events  or  facts,  and  ascertain  whether  they  are  naturally  and  prob- 
ably connected  with  each  other  by  a  continuous  sequence,  or  are  dis- 
severed by  new  and  independent  agencies,  and  this  must  be  determined 
in  view  of  the  circumstances  existing  at  the  time. 

If  we  are  not  mistaken  in  these  opinions,  the  Circuit  Court  was 
correct  in  refusing  to  affirm  the  defendants'  proposition,  and  in  sub- 
mitting to  the  jury  to  find  whether  the  burning  of  the  mill  and  lumber 
was  a  result  naturally  and  reasonably  to  be  expected  from  the  burning 
of  the  elevator,  under  the  circumstances,  and  whether  it  was  the  re- 
sult of  the  continued  influence  or  effect  of  the  sparks  from  the  boat, 
without  the  aid  or  concurrence  of  other  causes  not  reasonably  to  have 
been  expected.  The  jury  found,  in  substance,  that  the  burning  of  the 
mill  and  lumber  was  caused  by  the  negligent  burning  of  the  elevator, 


144  KUHN   V.   JEWETT.  [cHAP.  III. 

and  that  it  was  the  unavoidable  consequence  of  that  burning.  This, 
in  eflFect,  was  finding  that  there  was  no  intervening  and  independent 
cause  between  the  negHgent  conduct  of  the  defendants  and  the  injury 
to  the  plaintiff.     The  judgment  must,  therefore,  be  affirmed. 

Judgment  affirmed. 


KUHN  V.  JEWETT. 
Court  of  Chancery,  New  Jersey. 

[Reported  32  N.  J.  Eq.  647.] 

Van  Fleet,  V.  C.  The  petitioners  in  this  case  ask  to  be  compen- 
sated for  damages  they  allege  they  have  sustained  in  consequence  of 
the  negligence  of  the  defendant's  employees.  Their  bam  and  its  con- 
tents were  destroyed  by  fire,  and  they  claim  that  the  defendant  is 
legally  answerable  for  the  loss.  The  fire  originated  in  a  disaster  which 
occurred  on  the  defendant's  road,  at  Paterson,  on  the  7th  of  December, 
1877,  in  which  twenty-five  cars  loaded  with  petroleum  collided  with  a 
locomotive  attached  to  a  freight  train.  An  oil  train  had  been  cut  in 
two,  twenty-five  cars  being  detached,  and  five  or  six  left  attached  to 
the  locomotive.  Those  detached  were  left  standing  at  a  point  where 
the  grade  descended  to  their  rear  at  the  rate  of  thirty-five  feet  to  the 
mile.  Very  shortly  after  they  were  detached,  they  commenced  moving 
down  grade,  and  their  momentum  and  velocity  soon  became  so  great 
as  to  render  any  effort  to  arrest  them,  by  the  force  at  hand,  futile. 
When  the  cars  came  in  collision  with  the  locomotive,  some  of  the  oil 
tanks  were  thrown  from  the  cars  to  the  earth  with  such  force  as  to 
cause  them  to  burst,  and  to  discharge  their  contents.  The  oil,  thus  re- 
leased, spread  over  the  road  bed,  and  came  in  contact  with  fire  shaken 
from  the  locomotive  by  the  collision,  and  was  set  on  fire,  and,  thus  ig- 
nited, ran  down  the  embankment  into  a  small  brook,  over  which  the 
railroad  at  that  point  is  constructed,  and  was  carried  by  its  water  to 
the  Passaic  river,  and  from  there  by  the  water  of  the  river  to  the  peti- 
tioners' building,  which  stood  on  the  bank  of  the  river,  and  set  it  on  fire 
and  destroyed  it. 

The  e\adence  renders  it  clear,  I  think,  that  the  collision  was  the 
result  of  negligence.  When  it  is  remembered  that  twenty-five  loaded 
cars  were  left  standing  on  a  descending  grade,  in  charge  of  a  single 
brakeman,  with  brakes  applied  to  only  about  one-fourth  of  their  num- 
ber, and  that  they  commenced  nmning  away  almost  as  soon  as  they 
were  detached,  and  that  no  malicious  or  improper  intermeddling  with 
them  is  shown,  there  does  not  seem  to  be  the  least  difficulty  in  deter- 
mining what  was  the  cause  of  the  collision.  They  ran  away  because 
they  were  not  properly  secured.     Their  position  and   precipitancy 


SECT.  L]  *     KFHN   V.   JEWETT.  145 

show,  of  themselves,  that  they  were  not  handled  and  secured  with  the 
necessary  skill  and  care. 

The  case,  however,  presents  another  question.  Do  the  facts  show 
that  there  was  such  a  break  in  the  connection  between  cause  and 
effect,  that  it  can  be  declared,  as  a  legal  conclusion,  that  the  petitioners' 
damages  were  not  the  proximate  as  well  as  the  natural  result  of  the 
defendant's  negligence,  but  were  rather  caused  by  an  independent 
intervening  agency,  over  which  the  defendant  had  no  control,  and  for 
whose  action  or  influence  he  cannot  be  held  legally  responsible?  The 
usual  statement  of  the  rule  upon  this  subject  is,  that  damages  caused 
by  negligence,  to  be  recoverable,  must  not  only  be  its  natural,  but  also 
its  proximate,  consequence.  And  "proximate,"  as  used  in  this  in 
proposition,  means  closeness  of  causal  connection,  and  not  nearness 
in  time  or  distance,  and  is  intended  to  qualify  the  generality  of  the 
idea  expressed  by  the  word  "  natural."  Del.  Lack.  &  West.  R.  R.  Co. 
V.  Salmon,  10  Vr.  308.  Damages  arising  from  this  cause,  to  be  the 
basis  of  legal  redress,  must  not  only  be  the  natural  sequence  of  the 
wrongful  act  or  omission,  but  must  flow  directly  from  it,  in  obedience 
to  some  well-understood  and  recognized  material  force.  Whart.  on 
Neg.,  §  97 

There  can  be  no  doubt,  I  think,  if,  in  this  instance,  the  flames  of  the 
burning  oil  had  been  carried  by  the  wind  directly  from  the  point  of 
collision  to  the  petitioners'  building,  and  it  had  been  thus  set  on  fire 
and  destroyed,  that  the  injury. 'would,  in  judgment  of  law,  have  been 
the  natural  and  direct  or  proximate  result  of  the  collision.  So,  too, 
if  the  burning  oil  had  descended  from  the  point  where  it  was  first 
ignited,  by  the  mere  force  of  its  own  gravity,  upon  the  petitioners' 
building,  and  destroyed  it,  the  connection  between  cause  and  effect 
would  have  been  so  close  and  direct  that  the  defendant's  liability  could 
not  have  been  successfully  questioned.  So,  also,  if  the  fire  had  been 
carried  from  the  place  of  its  origin  to  the  petitioners'  building  by  a 
train  of  combustible  matter  deposited  in  its  track  by  the  operation  of 
the  laws  of  nature,  the  petitioners'  injury,  I  think  it  could  not  have 
been  doubted,  would  have  been  esteemed  the  direct  result  of  the  de- 
fendant's negligence.  It  was  distinctly  ruled  in  Del.  Lack.  &  West. 
R.  R.  Co.  V.  Salmon,  ubi  supra,  that  where  a  fire  originates  from  care- 
lessness, and  is  carried  from  the  point  of  its  origin  to  the  place  where 
the  damage  is  done,  by  combustible  matter  furnished  by  nature,  such 
matter  does  not  break  the  chain  of  causation  so  as  to  relieve  the  defend- 
ant from  liability,  but  is  to  be  regarded  as  one  of  its  constituent 
links.  And  it  was  also  adjudged  that  in  cases  where  a  fire,  negligently 
kindled,  is  not  immediately  communicated  to  the  property  destroyed 
—  as,  for  example,  where  it  is  communicated  from'  one  building  to 
another  until  it  reaches  the  plaintiff's  building  —  causal  connection 
only  ceases  when,  between  the  negligence  and  the  damage,  an  object 
is  interposed  which  would  have  prevented  the  damage,  if  due  care  had 


146  KUHN    V.    JEWETT.  [CHAP.  III. 

been  taken.  The  example  given  by  the  au  thor  of  this  rule,  in  illustration, 
is  this:  A  house  is  negligently  permitted  to  take  fire;  another  house, 
some  distance  off,  being  built  negligently  of  material  easily  ignited, 
catches  fire  from  the  first,  and  then  communicates  the  fire  to  a  third, 
which,  if  properly  built  and  guarded,  would  not  have  thus  caught. 
The  person  whose  negligence  started  the  fire  is  not  liable  to  the  owner 
of  the  third  house,  because  his  injury  is  due,  in  part,  to  an  interven- 
ing cause  combined  with  his  own  negligence.     Whart.  on  Neg.,  §  149. 

These  principles  must  rule  this  case.  Their  application  is  obvious. 
For,  although  water  is  almost  universally  used  as  a  means  to  extinguish 
fire,  and  it  seems,  at  first  blush,  to  be  absurd  to  say  that  it  can  be 
used  for  the  purpose  of  extending  it,  yet  it  is  true,  as  a  matter  of  fact, 
that  as  an  agency  for  the  transmission  of  burning  oil,  it  is  just  as  cer- 
tain and  effectual  in  its  operations  as  the  wind  in  carrying  flame  or  a 
spark,  or  combustible  matter  in  spreading  a  fire.  In  keeping  up  the 
continuity  between  cause  and  effect,  it  may  be  just  as  certain  and 
effectual  in  its  operation  as  any  other  material  force.  In  this  instance, 
it  carried  the  consequences  of  the  defendant's  negligence  to  the  peti- 
tioners' property,  with  almost  as  much  certainty  and  directness  as  if 
the  burning  oil  had  descended  upon  it  in  obedience  to  the  law  of 
gravitation. 

This  view  is  in  conflict  with  that  pronounced  by  the  Supreme  Court 
of  Pennsylvania  in  Hoag  v.  Lake  Shore  and  Michigan  Southern  R.  R. 
Co.,  85  Pa.  St.  293,  a  case  which,  in  its  facts,  is  substantially  the  coun- 
terpart of  the  one  in  hand.  The  water  of  a  running  stream  was  there 
held  to  be  an  intervening  agency  sufficiently  independent  and  power- 
ful to  constitute  a  new  force,  without  which  the  injury  might  not  have 
happened;  and  it  was,  therefore,  held  that  it  caused  a  sufficient  break 
in  the  chain  of  causation  to  relieve  the  defendant  from  liability.  The 
capacity  and  adaptability  of  a  nmning  stream  as  an  agency  for  the 
transmission  of  burning  oil,  and  its  similitude  to  other  material  forces 
as  a  means  of  communicating  this  species  of  fire,  does  not  seem  to  have 
been  considered  by  the  court,  at  least  no  allusion  is  made  to  it.  The 
case  is  not,  however,  entitled  to  the  respect  due  to  an  independent  ad- 
judication, where  the  court,  untrammeled  by  previous  utterances, 
simply  endeavors  to  ascertain  what  rule  will  best  promote  justice  and 
conform  to  enlightened  reason  and  sound  policy.  The  judgment  is, 
in  fact,  a  mere  affirmation  of  principles  prcA-iously  promulgated  in 
Ryan  v.  N.  Y.  Central  R.  R.  Co.,  35  N.  Y.  210,  and  subsequently 
followed  in  Pennsylvania  R.  R.  Co.  v.  Kerr,  62  Pa.  St.  353.  These 
cases  were  recently  strongly  disapproved  by  the  court  of  errors  and 
appeals  of  this  State,  as  standing  opposed  to  both  precedent  and  prin- 
ciple.   Del.  Lack.  &  West.  R.  R.  Co.  v.  Salmon,  ubi  supra. 

The  rule  established  by  the  case  just  mentioned,  I  understand  to 
be  this:  That  where  a  fire  originates  in  the  negligence  of  a  defendant, 
and  is  carried  directly  by  a  material  force,  whether  it  be  the  wind,  the 


SECT.    I.]  MILLER   V.    KELLY    COAL    CO.  147 

law  of  gravitation,  combustible  matter  existing  in  a  state  of  nature,  or 
other  means,  to  the  plaintiff's  property  and  destroys  it,  and  it  appears 
that  no  object  intervened  between  the  point  where  the  fire  started 
and  the  injury,  which  would  have  prevented  the  injury,  if  due  care 
had  been  taken,  the  defendant  is  legally  answerable  for  the  loss.  Under 
this  rule,  the  defendant  is  liable  for  the  petitioners'  loss. 

There  is  no  difficulty  in  measuring  the  damages  in  this  case.  All 
the  evidence,  in  relation  to  them,  came  from  the  mouth  of  one  of  the 
petitioners.  His  statements  seemed  to  be  exceptionally  frank  and 
fair.  I  have  no  doubt  of  the  correctness  of  his  estimates.  According 
to  them,  the  property  destroyed  was  worth  $427.60.  That  sum,  with 
interest,  will  be  awarded. 


MILLER  V.  KELLY  COAL    CO. 
Supreme  Court  of  Illinois,  1909. 

[Reported  239  III.  62G.] 

This  is  an  appeal  from  a  judgment  of  the  Appellate  Court  for  the 
Third  District  affirming  a  judgment  for  $.3000  rendered  by  the  Circuit 
Court  of  Vermilion  County  in  favor  of  appellee,  and  against  appellant, 
for  personal  injuries  sustained  by  appellee  while  working  as  a  mule 
driver  in  the  coal  mine  of  appellant. 

The  declaration  contained  two  counts.  The  first  count  charged  th:it 
plaintiff  was  employed  in  defendant's  mine,  at  the  time  of  his  injury, 
as  a  mule  driver,  in  hauling  coal  along  the  sixth  northwest  entry; 
that  the  defendant,  disregarding  its  duty  in  that  behalf,  negligently  and 
carelessly  furnished  plaintiff  a  mule  that  was  vicious  and  disposed  to 
kick,  which  the  defendant  knew  and  which  the  plaintiff  did  not  know; 
that  on  the  morning  of  the  second  day  plaintiff  had  driven  the  mule  in 
the  usual  course  of  his  employment,  and  while,  in  the  exercise  of  ordi- 
nary care  for  his  own  safety,  he  was  hauling  coal  along  the  entry  about 
opposite  Room  30  of  said  entry,  said  mule,  without  provocation,  be- 
gan kicking  and  kicked  plaintiff  down  in  front  of  the  car;  that,  because 
of  a  gob  of  rock,  dirt,  and  other  debris  which  defendant  had  permitted 
to  accumulate  on  either  side  of  the  track  to  a  height  of,  to  wit,  three 
feet,  plaintiff  was  unable  to  escape  and  get  away  from  the  mule  and  the 
car,  and  was  thereby  caught  beneath  the  car,  loaded  with  about  four 
tons  of  coal;  that  said  car  was  pulled  up  against,  upon,  and  over  plain- 
tiff, thereby  crushing  the  bones  of  his  chest  and  injuring  him  in  the 
hips,  arms,  head,  and  divers  other  parts  of  his  body.  The  second 
count  of  the  declaration  charged  the  defendant  with  failing  to  use 
reasonable  care  to  provide  the  plaintiff  with  a  reasonably  safe  place 
in  which  to  work.  The  second  count  was  taken  from  the  jury  by  the 
court  and  the  cause  was  submitted  upon  the  first  count  only. 

Farmer,  J.     The  principal  contention  of  appellant  is  that  the  kick- 


148  MILLER   V.    KELLY   COAL   CO.  [CHAP.  III. 

ing  by  the  mule  was  not  the  proximate  cause  of  the  injury,  and  that 
the  trial  court  erred  in  not  directing  a  verdict  in  its  favor  upon  that 
ground. 

Appellee  testified  that  when  the  mule  kicked  him  the  first  time  he 
was  standing  on  the  bumper  of  the  car;  that  he  then  attempted  to  get 
out  of  the  way,  but  by  reason  of  a  gob  next  to  the  track  extending  up 
so  high,  he  was  unable  to  do  so  and  the  mule  kicked  him  down  on  the 
ground  under  the  car;  that  if  it  had  not  been  for  the  gob  he  would 
have  gotten  out  of  the  way.  Appellee's  injury  occurred  on  the  31st 
of  May  and  he  had  been  driving  in  the  sixth  northwest  entry  since  the 
4th  of  March  previous.  He  testified  the  gob  had  been  in  the  same 
condition  and  he  had  seen  it  several  times  a  day  during  the  j)eriod  he 
had  been  driving  in  that  entry.  Appellant  contends  that  the  injury 
would  not  have  occurred  but  for  the  gob ;  that  this  was  an  independent 
cause  of  the  injury,  and  therefore  the  kicking  by  the  mule  was  not  the 
proximate  cause  of  said  injury.  We  think  the  trial  court  was  war- 
ranted in  refusing  to  direct  a  verdict  for  appellant  upon  that  theory. 
The  law  was  correctly  stated  by  the  Appellate  Court  in  the  following 
language:  "The  proximate  cause  of  an  injury  is  that  act  or  omission 
which  immediately  causes  and  without  which  the  injury  would  not 
have  happened,  notwithstanding  other  conditions  or  omissions  con- 
curred there\\ath.  It  is  obvious  that  in  the  case  at  bar  the  immediate 
cause  of  appellee's  injuries  was  the  kicks  he  received  from  the  mule; 
that,  had  not  the  mule  kicked,  appellee  would  not  have  been  harmed  by 
the  presence  of  the  gob.  Even  though  the  gob  be  held  to  have  been  a 
concurring  or  intervening  cause  of  the  injury,  appellant  would  be  never- 
theless liable  for  the  reason  stated."  This  is  abundantly  sustained 
by  the  following  authorities:  Pullman  Palace  Car  Co.  v.  Laack,  143 
111.  242;  Springfield  Consolidated  Railway  Co.  v.  Puntenney,  200  id.  9; 
Chicago  Terminal  Railroad  Co.  v.  Schmelling,  197  id.  619;  City  of 
Joliet  V.  Shufeldt,  144  id.  403;  Missouri  Malleable  Iron  Co.  v.  Dillon, 
206  id.  145.  In  Armour  v.  Golkowska,  202  111.  144,  this  court  said 
(p.  149) :  "  In  City  of  Joliet  v.  Shufeldt,  144  111.  403,  we  deduced  from 
the  authorities  the  general  doctrine  that  it  was  not  a  defense  to  an 
action  for  injuries  occurring  by  reason  of  the  negligent  act  of  the  de- 
fendant that  the  negligence  of  a  third  person  or  an  inexntable  accident 
or  an  inanimate  thing  contributed  to  cause  the  injury  to  the  plaintiff, 
if  the  negligence  of  the  defendant  was  an  efficient  cause  and  without 
which  the  injury  would  not  have  occurred."  In  Commonwealth  Elec- 
tric Co.  V.  Rose,  214  111.  545,  the  court  said  (p.  554):  "Where  an  in- 
jury is  the  result  of  the  negligence  of  the  defendant  and  an  inevitable 
accident,  or  an  inanimate  thing  has  contributed  with  the  negligence 
of  the  defendant  to  cause  the  injury,  the  plaintiff  may  recover,  if  the 
negligence  of  the  defendant  was  an  efficient  cause  of  the  injury  and  the 
injured  of  deceased  party  was  in  the  exercise  of  ordinary  care  for  his  own 
safetv." 


SECT.  II.]  SCOTT   V.   HUNTER.  149 

SECTION   II. 

Interposition  of  a  Natural  Force, 

SCOTT  V.  HUNTER. 
Supreme  Court  of  Pennsylvania,  1863. 

[Re-ported  46  Pa.  192.] 

Strong,  J.  This  was  an  action  of  trespass  on  the  case,  brought 
to  recover  the  value  of  two  coal-boats,  with  their  cargoes,  belonging 
to  the  plaintiffs,  and  lost,  as  they  aver,  through  the  unla\\^ul,  wilful, 
malicious,  and  negligent  conduct  of  the  defendants.  The  declaration 
contained  two  counts,  the  first  of  which  averred  that  the  defendants  had 
caused  the  loss  of  the  boats  by  unlawfully,  wilfully,  and  maliciously 
mooring  their  owti  coal-boats  in  the  channel  and  entrance  to  the  locks 
at  one  of  the  dams  of  the  Monongahela  Na\agation  Company,  on  the 
Monongahela  river,  and  keeping  them  in  that  situation,  thus  stopping 
the  navigation  for  the  plaintiffs'  boats,  and  detaining  them  in  the  river, 
though  they  were  ready  and  prepared  to  proceed  on  their  voyage, 
while  the  river  was  rapidly  rising,  and  until  the  power  of  the  current 
forced  them  over  the  dam  and  caused  a  total  wreck.  The  second  count 
charged  unlawful  and  negligent  conduct  of  the  defendants  in  the 
management  of  their  boats  at  the  locks,  thus  obstructing  the  entrance 
thereto,  and  the  channel  of  the  river,  and  preventing  the  passage  of 
the  plaintiffs'  boats,  while  the  river  was  rapidly  rising  and  exposing 
them  to  great  hazard,  and  while  the  defendants  well  knew  the  boats 
were  in  danger.  It  further  averred  that  with  this  knowledge,  the 
obstructions  were  continued  by  the  defendants,  until  the  plaintiffs' 
boats  were  carried  over  the  dam  by  the  current,  and  totally  lost. 

On  the  trial,  the  jury,  under  instructions  given  by  the  court,  found 
a  verdict  for  the  plaintiffs,  and  assessed  damages,  thus  establishing 
that  the  defendants  were  gijilty  of  the  misconduct  and  negligence 
complained  of,  and  that  the  plaintiffs  were  chargeable  uath  no  negli- 
gence or  default  which  contributed  to  the  loss.  Both  these  questions 
were  submitted  plainly  to  the  jury,  and  they  are  now  at  rest.  But  the 
court  reserved  the  question  whether  the  connection  between  the  de- 
fendants' wrongful  acts  and  the  loss  of  the  boats  over  the  dam  was 
sufficiently  close,  to  enable  the  plaintiffs  to  maintain  their  action,  and, 
after  consideration,  being  of  opinion  that  the  rapid  rise  in  the  river 
and  the  consequent  increased  current  was  the  proximate  cause  of  the 
loss,  and  that  the  wanton  or  negligent  obstruction  of  the  locks,  and  of 
the  channel  of  the  river,  was  a  cause  too  remote,  entered  judgment 
for  the  defendants  non  obstante  veredicto. 

It  is  observable  that  the  jury  did  not  pass  upon  the  question  whether 
the  defendants  ought  not  to  have  apprehended  that  their  unlawful 


150  SCOTT   V.   HUNTER.  [CHAP.  III. 

and  continued  obstruction  of  the  entrance  to  the  locks  might  result 
in  the  plaintiffs'  boats  being  swept  by  the  current  over  the  dam,  and 
lost,  as  they  were.  This  was  not  submitted  to  them.  The  court  as- 
sumed that  the  sudden  rise  of  the  river,  and  the  danger  to  the  plain- 
tiffs' boats,  could  not  have  been  anticipated  by  ordinary  prudence 
and  care.  Now  it  is  very  ob\'ious  that  if  the  defendants,  while  they 
were  wantonly  or  negligently  keeping  their  own  boats  at  the  entrance 
of  the  locks,  and  preventing  the  passage  of  the  plaintiffs',  knew  the 
danger  to  which  their  unlawful  act  exposed  the  property  of  the  plain- 
tiffs, as  it  is  averred  in  the  declaration  they  did,  they  are  responsible 
for  the  damage  which  resulted  from  their  act,  though  it  was  not  the 
most  proximate  cause.  And  so,  if  they  ought  to  have  known  the 
danger,  as  men  of  ordinary  prudence,  and  yet  persisted  in  maintaining 
the  obstruction,  they  are  responsible.  It  is  a  familiar  principle  that  a 
man  is  answerable  for  such  consequences  of  his  unlawful  acts  as  are 
natural,  and  may  be  foreseen  by  ordinary  forecast.  What  is  ordi- 
nary care  in  the  performance  of  an  act  depends  upon  the  surrounding 
circumstances. 

It  is  greater  or  less,  according  to  the  increased  or  diminished  hazard 
to  others  with  which  it  is  done.  That  may  be  prudent  if  done  in  a 
wilderness,  which  would  be  grossly  careless  if  done  in  a  crowded 
city,  ^^^^y?  Because  no  injurious  consequences  would  naturally  be 
expected  in  the  one  case,  while  in  the  other  they  may  be  almost  in- 
evitable. Hence  the  actor  is  bound  to  anticipate  more  in  the  one 
case  than  in  the  other,  and  as  he  is  liable  for  all  he  should  have  fore- 
seen, the  extent  of  his  responsibility  is  not  the  same. 

In  the  present  case,  the  defendants  obstructed  the  passage  through 
the  locks  from  about  four  o'clock  in  the  afternoon  of  April  9th,  until 
in  the  afternoon  of  the  10th  of  April,  and  until  after  the  plaintiffs' 
boats  had  been  carried  over  the  dam.  Their  act  was  unlawful,  either 
wanton  or  negligent.  During  all  the  time,  they  saw  the  river  rising 
rapidly,  and  with  it,  of  course,  the  current  increasing.  From  two 
o'clock  on  the  morning  of  the  10th,  until  the  disaster  occurred,  the 
water  rose  at  the  rate  of  nearly  a  foot  in  an  hour,  and  of  course  the 
pressure  of  the  current  was  becoming  greater.  Meanwhile  the  plain- 
tiffs' boats  were  moored  out  in  the  stream,  outside  of  the  defendants' 
boats,  exposed  to  all  the  downward  pressure  of  the  current,  without 
any  fault  of  theirs,  as  the  jury  have  found,  but  with  the  full  knowledge 
of  the  defendants.  In  that  position  they  were  kept  for  hours  by  the 
tortious  conduct  of  the  defendants.  Under  such  circumstances,  it  is 
highly  probable  the  jury  would  have  found,  had  the  question  been  sub- 
mitted to  them,  that  the  defendants  knew  of  the  danger  to  which  their 
unlawful  conduct  exposed  the  property  of  the  plaintiffs,  and  that  with 
ordinary  prudence  they  must  have  foreseen  what  did  happen,  i.  e., 
the  loss  of  the  boats,  a  loss  which  they  might  have  prevented,  by  drop- 
ping their  own  l:)oats  through  the  locks.    If  they  should  have  anticipated 


SECT.  II.]  SCOTT    V.    HUNTER.  151 

it,  then  it  was  a  natural  consequence  of  their  acts,  for  which  they  must 
answer  in  damages.  Here  we  think  the  court  erred  in  assuming,  or 
undertaking  to  decide  as  a  matter  of  law,  that  the  wreck  of  the  boats 
was  not  a  natural  consequence  of  the  wrongful  act  of  the  defendants, 
in  blocking  up  the  locks  and  the  channel  of  the  river,  and  holding 
the  boats  of  the  plaintiffs  so  long  exposed  to  the  force  of  the  current. 
It  was  a  natural  consequence,  if  it  should  have  been  foreseen,  or  if  it 
would  have  been  guarded  against  by  men  of  ordinary  prudence,  using 
their  own  rights  with  proper  regard  to  those  of  others.  And  it  was  mani- 
festly for  the  jury  to  determine  whether  it  was  a  natural  consequence, 
such  as  should  have  been  foreseen  by  the  defendants  at  the  time,  and  in 
the  circumstances  in  which  they  acted,  or  rather  in  which  they  failed 
to  act. 

It  is  quite  probable  that  this  view  altogether  escaped  the  notice  of 
the  learned  judge  who  tried  the  cause,  in  consequence  of  the  mode  in 
which  the  case  was  presented.  His  attention  appears  to  have  been 
directed  to  the  relative  character  of  the  causes  of  the  loss,  as  proxi- 
mate or  remote,  rather  than  to  the  inquiry  whether  it  was  a  natural 
consequence  of  either.  It  is  an  undoubted  rule  that  the  proximate 
rather  than  the  remote  cause  is  to  be  regarded  as  the  author  of  a  mis- 
chief. The  old  maxim  is,  "causa  proxima,  non  remota,  specfatur." 
It  is,  however,  a  maxim  exceedingly  difficult  of  application.  Indeed, 
it  is  impossible  by  any  general  rule  to  draw  a  line  between  those  in- 
jurious causes  of  damage  which  the  law  regards  as  sufficiently  proxi- 
mate, and  those  which  are  too  remote  to  be  the  foundation  of  an 
action.  The  court  below  ruled  the  case  mainly  on  its  supposed  resem- 
blance to  Morrison  v.  Da\'is,  8  Harris  171.  There  the  defendants, 
who  were  carriers  on  the  Pennsylvania-Canal,  and  whose  boat  had 
been  wrecked  by  a  breach  in  the  canal  caused  by  an  extraordinary 
flood,  whereby  the  plaintiff's  goods  were  injured,  were  held  not  to  be 
liable  on  account  of  their  having  started  on  the  voyage  with  a  lame 
horse,  in  consequence  of  which  they  were  delayed  in  passing  the  place 
where  the  accident  happened,  in  time  to  escape  it.  That  ruling  was 
undoubtedly  correct.  There  was  no  necessary  connection  between  the 
use  of  the  lame  horse  and  the  destruction  of  the  boat.  They  were  re- 
mote from  each  other  in  time,  as  well  as  in  place,  and  there  were  inter- 
mediate causes.  Had  the  horse  been  still  more  lame  and  unfit,  thus 
occasioning  greater  delay,  the  loss  would  not  have  happened.  The 
present  case  is  of  a  different  character.  The  wTongful  act  of  the  de- 
fendants was  concurrent  in  time  and  in  operation  with  the  flood  in 
the  river.  It  was  both  combined  that  forced  the  plaintiffs'  boats  over 
the  dam.  The  defendants'  acts  pushed  them  out  into  the  current,  and 
held  them  there  until  they  were  swept  away.  We  must  not  forget  that 
the  verdict  settles  there  was  no  default  in  the  plaintiffs,  either  in  having 
moored  their  boats  with  an  insufficient  line,  or  in  having  placed  them 
where  they  were  placed.     Now  if  the  defendants  had  by  direct  force 


152  SCOTT   V.   HUNTER.  [CHAP.  III. 

pushed  the  boats  out  into  the  current,  and  they  had  been  swept  over 
the  dam,  as  they  were,  it  would  not  be  doubted  that  in  an  action  of 
trespass  the  value  of  the  boats  might  have  been  recovered.  The 
consequence  would  be  held  sufficiently  near  the  cause.  The  forcible 
pushing  out  would  be  held  the  "causa  causans,"  acting  through  the 
current,  and  trespass  would  be  maintained:  Burdick  v.  Worrall,  4 
Barb.  496.  Yet  the  consequence  would  have  been  just  as  remote 
from  the  unlawful  act  in  that  case  as  it  is  in  this.  In  both  cases  the 
flood  is  in  one  aspect  the  nearest  agent.  Why,  then,  was  the  wrongful 
obstruction  of  the  entrance  to  the  locks  not  a  sufficiently  proximate 
cause  of  the  injury?  We  think  it  was,  and  that  the  District  Court  erred 
in  coming  to  a  different  conclusion.  In  Lund  v.  Tyngsboro,  11  Cush. 
563,  it  was  held  that  if  a  traveller,  exercising  ordinary  care  and  pru- 
dence, voluntarily  leaps  from  his  carriage  and  is  injured,  because  of 
its  near  approach  to  a  dangerous  defect  in  the  highway,  the  town  is 
liable,  though  the  carriage  did  not  come  into  actual  contact  with  the 
defect.  In  McAfee  v.  Crofford,  13  Howard  447,  where  in  consequence 
of  a  wrongful  abduction  of  the  plaintiff's  slaves,  a  flood  in  a  river 
swept  away  his  wood,  it  was  held  that  the  plaintiff  might  recover 
the  value  of  the  wood  in  an  action  for  carrying  away  the  slaves.  This 
case  goes  very  far  beyond  what  we  feel  prepared  now  to  assert.  In 
Dickinson  v.  Boyle,  17  Pick.  78,  where  the  defendant  had  broken  and 
entered  the  plaintiff's  close  adjacent  to  a  river,  and  had  carried  away 
gravel  from  a  bank  near  to  a  dam  across  the  river,  in  consequence 
of  which  a  flood  in  the  river  three  weeks  afterwards  swept  away  a 
portion  of  the  close  and  a  cider-mill,  it  was  held  the  whole  damage 
might  be  recovered.  In  Hearny  v.  Hearny,  2  Denio  625,  it  was  ruled 
that  if  the  owner  of  a  dock  untie  a  vessel  lawfully  moored  therein, 
and  set  it  adrift,  he  is  answerable  for  the  loss  sustained  by  its  subse- 
quent stranding  elsewhere. 

In  George  v.  Fiske,  32  N.  H.  32,  where  the  defendants  had  put  a 
large  quantity  of  logs  on  the  ice  of  a  river,  and  exercised  no  further 
care  in  regard  to  them,  and,  on  the  ice  breaking  up,  a  dam  was  formed 
by  the  logs  and  the  ice,  whereby  a  channel  was  cut  through  the  land 
of  the  plaintiff,  and  the  logs  carried  upon  it,  the  defendants  were  held 
liable.  So  in  our  own  case  of  Pittsburgh  v.  Grier,  10  Harris  54,  the  city 
of  Pittsburgh  was  held  liable  for  the  loss  of  a  steamboat,  upon  the 
following  state  of  facts:  The  boat  had  anchored  at  the  wharf,  when 
the  water  was  low.  The  river  rose  afterwards,  covering  certain  piles 
of  pig  iron  negligently  left  by  the  city  on  the  wharf,  about  a  foot 
above  low-water  mark.  To  avoid  these  piles,  the  boat  was  compelled 
to  back  out  into  the  stream,  when  she  was  struck  by  some  floating 
body,  stove,  and  sunk.  Citations  of  similar  decisions  might  be  in- 
definitely multiplied.  They  do  not  enable  us  to  define  precisely  what 
is  regarded  a  remote  and  what  a  proximate  cause,  but  they  do  show 
that  the  wrongful  conduct  of  which  these  defendants  are  contacted 


SECT.  II.]  DERRY   V.    FLITNER.  153 

cannot  be  considered  so  remote  a  cause  of  the  loss  sustained  by  the 
plaintiffs,  as  not  to  afford  ground  for  an  action. 

For  these  reasons  we  reverse  the  judgment,  but  as  it  appears  from 
the  record  there  are  other  questions  in  the  case,  which  are  not  now 
before  us,  we  do  not  enter  judgment  on  the  verdict,  but  we  send  the 
case  back  for  a  new  trial. 

Judgment  reversed,  and  a  venire  de  novo  awarded.^ 


DERRY  V.  FLITNER. 
Supreme  Judicial  Court  of  Massachusetts,  1875. 

[Reported  118  Mass.  131.] 

Morton,  J.  The  plaintiffs  were  engaged  in  building  a  sea  wall 
for  the  Boston  Gas  Light  Company,  around  and  in  front  of  their 
wharf  at  Commercial  Point.  There  was  e\adence  tending  to  show  that 
the  Gas  Light  Company  had  given  to  the  plaintiffs  the  exclusive  right 
to  use  the  wall  to  lay  their  vessels  at  as  a  place  of  safety  in  case  of  storms. 

The  judge,  who  tried  the  case  without  a  jury,  has  found  that  the 
plaintiffs  had  such  exclusive  right,  and  it  is  not  our  province  to  re- 
vise his  findings  upon  any  questions  of  fact.  The  defendant  Dutch, 
therefore,  had  no  right  to  use  the  wall  to  the  exclusion  of  the  plaintiffs' 
vessels,  and  having  done  so,  and  having  refused  to  remove  his  vessel 
when  requested,  he  is  guilty  of  a  violation  of  the  plaintiffs'  rights,  for 
which  they  may  recover,  in  this  action  of  tort,  whatever  damages  they 
sustained  by  reason  of  the  tortious  acts  of  the  defendant.  The  ruling 
of  the  Superior  Court  to  this  effect  was  correct. 

The  defendant  contended,  and  asked  the  court  to  rule,  "that  the 
damage  alleged  and  proved  is  too  remote  from  the  act  complained  of, 
and  is  not  the  proximate  consequence  of  the  same  sufficiently  in  law 
to  render  the  defendants  or  any  of  them  liable  therefor." 

The  facts  bearing  upon  this  question  are  as  follows :  At  the  time  of  the 
accident,  the  plaintiffs  had  several  vessels  engaged  in  bringing  and 
laying  stone  for  the  construction  of  the  sea  wall.  Most  of  the  wall 
had  been  built  only  up  to  low  water  mark,  but  the  plaintiffs,  in  the  be- 
ginning of  the  work,  had  built  about  two  hundred  feet  of  the  wall 
to  a  height  of  thirteen  feet  above  low  water  mark,  for  the  purpose  of 
furnishing  a  safer  place  to  lay  their  vessels  at  in  case  of  easterly  \\ands 
or  heavy  seas.  They  could  lay  two  of  their  vessels  behind  this  high 
part  of  the  wall.  On  the  night  of  the  accident  this  part  of  the  wall 
was  wholly  occupied  by  the  defendant's  schooner,  so  that  there  was  no 
room  for  any  other  vessel.  The  plaintiffs  had  five  vessels  at  the  sea 
wall.  About  five  o'clock  it  began  to  blow  strongly  from  the  eastward; 
the  storm  increased  during  the  night,  and  about  eleven  o'clock  two 

1  See  St.  Louis  S.  W.  Ry.  v.  Mackey,  95  Ark.  297,  129  S.  W.  78;  Marsh  r.  Great 
Northern  Paper  Co.,  101  Me.  489,  64  Atl.  844.—  Ed. 


154  DERRY    V.    FLITXER.  [CHAP.  III. 

of  the  plaintiffs'  vessels  were  sunk.  The  court  found  as  a  fact  that 
the  storm  was  such  as  is  not  uncommon  in  this  climate. 

The  defendant  contends  that  the  injury  to  the  plaintiffs  was  the 
result  of  the  storm  solely,  and  that  he  is  not  liable  for  it,  although 
his  exclusion  of  the  plaintiff's'  vessels  from  a  place  of  safety  behind  the 
wall  was  tortious.  The  cases  upon  this  subject  are  numerous.  The  rule 
is  well  settled  and  is  constantly  applied  in  this  Commonwealth,  that 
one  who  commits  a  tortious  act  is  liable  for  any  injury  which  is  the 
natural  and  probable  consequence  of  his  misconduct.  He  is  liable  not 
only  for  those  injuries  which  are  caused  directly  and  immediately 
by  his  act,  but  also  for  such  consequential  injuries  as,  according  to  the 
common  experience  of  men,  are  likely  to  result  from  his  act.  And  he 
is  not  exonerated  from  liability  l)y  the  fact  that  intervening  events  or 
agencies  contribute  to  the  injury.  The  true  inquiry  is  whether  the 
injury  sustained  was  such  as,  according  to  common  experience  and  the 
usual  course  of  events,  might  reasonably  be  anticipated.  A  few 
of  the  more  recent  cases  are  cited.  Hoadley  v.  Northern  Transporta- 
tion Co.,  115  Mass.  304;  Metallic  Compression  Casting  Co.  v.  Fitch- 
burg  Railroad,  109  Mass.  277;  Salisbury  v.  Herchenroder,  106  Mass. 
458;  Wellington  v.  Downer  Kerosene  Oil  Co.,  104  Mass.  64;  Carter 
V.  Towne,  98  Mass.  567;  McDonald  v.  Snelling,  14  Allen,  290. 

Applying  these  principles  to  the  case  at  bar,  we  are  of  opinion 
that  the  injury  to  the  plaintiffs'  vessels  by  the  storm  was  an  injury 
which  was  reasonably  to  be  apprehended  as  a  consequence  of  their 
exclusion  from  the  place  of  safety  furnished  by  the  sea  wall.  The  wall 
was  built  for  protection  against  storms.  It  is  found  as  a  fact  that 
the  storm  which  arose  was  not  an  uncommon  one  in  this  climate. 
It  was  reasonably  to  be  anticipated  that  such  a  storm  might  arise,  and 
that  vessels  exposed  to  it  would  be  in  danger  of  injury.  The  wrongful 
act  of  the  defendant,  in  taking  and  retaining  exclusive  possession  of 
this  place  of  safety,  exposed  the  plaintiffs'  vessels  to  the  dangers  of  the 
storm,  and  the  injury  which  they  sustained  was  the  natural  and  prob- 
able consequence  of  this  WTongful  act.  Within  the  rule  above  stated, 
the  defendant  is  liable  for  such  injury. 

The  defendant  now  contends  that,  as  the  plaintiffs  had  four  vessels 
which  they  were  accustomed  to  lay  at  the  place  occupied  by  his  schooner, 
it  was  not  and  cannot  be  shown  that  the  two  vessels  which  were  sunk 
would  have  occupied  the  place  if  his  schooner  had  not  been  there.  This 
presents  a  question  of  fact  and  not  of  law.  It  was  a  fact  capable  of 
proof  with  such  reasonable  certainty  as  the  law  requires,  that  the  two 
vessels  sunk  would  have  been  placed  there  for  safety.  The  presiding 
judge  has  found  this  fact  in  favor  of  the  plaintiffs.  There  is  some 
evidence  reported  in  the  bill  of  exceptions  tending  to  prove  this  fact, 
and  it  does  not  appear  that  all  the  e\'idence  is  reported.  We  cannot 
say  as  matter  of  law  that  the  finding  was  erroneous. 

The  same  considerations  dispose  of  the  only  other  point  taken  by 


SECT.  II  ]  JACKSON    V.    "WISCONSIN   TELEPHONE    CO.  155 

the  defendant,  viz.,  tliat  it  was  not  proved  that  the  two  vessels  sunk 
would  have  been  entirely  safe  if  they  had  occupied  the  place  behind 
the  sea  wall.  This  is  a  question  of  fact  upon  which  there  was  some 
evidence,  and  we  cannot  revise  the  finding  of  the  court  upon  it.^ 

Exceptions  overruled. 

JACKSON  V.  WISCONSIN  TELEPHONE  CO. 
Supreme  Court  of  Wisconsin,  1894. 

[Reported  88  Wis.  243.] 

Appeal  from  the  Circuit  Court  for  Chippewa  County. 

This  action  is  brought  to  recover  damages  for  a  barn  and  its  con- 
tents, burned,  as  plaintiff  claims,  by  reason  of  defendant's  negligence. 
Near  the  city  of  Eau  Claire  there  is  a  plateau  about  eighty  feet  above 
the  level  of  the  surrounding  country.  In  August,  1889,  two  large  frame 
buildings,  about  325  feet  distant  from  each  other,  stood  upon  this 
plateau,  one  being  a  county  fair  building  known  as  Floral  Hall,  and  the 
other  being  the  bam  of  the  plaintiff.  These  buildings  were  about  the 
same  height,  and  upon  the  top  or  ridge  of  each  there  stood  a  flagpole 
or  mast  twenty  to  thirty  feet  in  height.  Prior  to  the  year  1888  the  de- 
fendant had  constructed  a  telephone  line  from  the  highway  running 
past  the  fair  grounds.  In  September,  1888,  the  defendant  placed  a 
telephone  in  Floral  Hall,  and  connected  it  with  No.  12  ware  with 
its  telephone  line  on  the  highway.  This  connecting  wire  ran  from  the 
highway  first  to  the  flagpole  upon  plaintiff's  barn,  and  was  there  tied  to 
the  pole;  from  thence  it  ran  directly  to  Floral  Hall.  There  was  a  dispute 
as  to  the  place  where  this  wire  was  fastened  to  Floral  Hall,  the  plain- 
tiff's witnesses  testifying  that  it  was  fastened  directly  to  the  flag- 
staff upon  Floral  Hall,  a  foot  or  so  above  the  roof,  while  the  defendant's 
witnesses  claim  that  it  was  attached  to  nails  on  the  side  of  the  building. 
The  plaintiff  gave  no  permission  to  attach  the  wire  to  his  barn,  and 
testified  that  he  had  no  knowledge  that  it  was  so  attached.  A  ground 
wire  from  the  telephone  in  the  interior  of  Floral  Hall  ran  up  to  the 
flagstaff,  and  thence  a  distance  of  about  376  feet  to  the  ground,  where 
it  was  attached  to  an  iron  water  pipe.  Some  time  in  the  fall  of  1888  the 
defendant  took  out  the  telephone  from  Floral  Hall,  together  with  the 
insulated  wire  in  the  interior  of  the  building.  The  ground  wire  was  left 
intact,  and  so  was  the  wire  from  Floral  Hall  to  the  barn.  The  wire 
from  the  highway  to  Jackson's  barn  was  taken  down,  but  it  was  claimed 
by  the  plaintiff's  witnesses  that  a  considerable  piece  of  said  wire  at  the 
barn  end  thereof  was  left  resting  upon  the  roof  of  the  barn. 

On  the  night  of  the  20th  day  of  August,  1889,  there  was  considerable 
rain.    At  about  4  o'clock  in  the  morning  there  was  a  flash  of  lightning, 

1  See  Grand  Valley  Irr.  Co.  v.  Pitzer,  14  Colo.  App.  12.3,  59  Pac.  420;  Smith  v. 
Faxon,  156  Mass.  589,  31  N.  E.  687;  Bonner  v.  Wingate,  78  Tex.  333,  14  S.  W.  790. 
—  Ed. 


156  JACKSON   V.   WISCONSIN   TELEPHONE   CO.  [CHAP.  III. 

which  was  described  by  the  witnesses  as  a  blinding  flash,  and  which 
was  thought  by  them  to  have  descended  upon  Floral  Hall.  In  a  few 
minutes  the  roof  of  plaintiffs  barn  was  in  flames,  and  the  barn  and  its 
contents  were  destroyed.  Two  men  were  sleeping  in  a  shed  or  build- 
ing upon  the  fair  ground,  and  they  immediately  went  to  the  barn,  and 
testify  that  the  flagpole  upon  Floral  Hall  was  completely  shattered, 
while  the  flagpole  upon  the  barn  was  untouched.  The  plaintiff's 
claim  is  that  the  lightning  struck  Floral  Hall,  and  was  conducted  by  the 
wire  to  plaintiff's  barn,  and  set  it  on  fire,  and  that  the  defendant  was 
negligent  in  leaving  the  wire  thus  attached  to  the  bam.  Much  ex- 
pert evidence  was  adduced  on  both  sides  as  to  the  probability  of  light- 
ning passing  over  such  a  wire  and  destroying  the  barn.  A  motion  for 
non-suit  was  overruled,  as  was  also  a  motion  to  direct  a  verdict  for 
defendant. 

The  jury  returned  a  special  verdict,  finding:  First,  that  the  defendant 
connected  the  plaintiff's  barn  with  Floral  Hall  by  means  of  a  telephone 
wire  attached  to  the  flagstaff  of  the  barn  and  to  the  flagstaff  on  Floral 
Hall,  without  any  intermediate  attachment;  second,  that  defendant 
left  the  wire  so  located  on  the  plaintiff's  barn  that  a  portion  of  the  same 
rested  on  the  roof;  third,  that  the  barn  was  thereby  subjected  to  danger 
of  being  destroyed  by  fire  caused  by  lightning  electricity  passing  over 
such  wire  from  Floral  Hall  to  the  barn;  fourth,  that  the  fire  was  caused 
by  lightning  electricity  so  passing  over  said  wire;  fifth,  that  in  so  leav- 
ing the  barn  connected  with  Floral  Hall  the  defendant's  servants 
were  guilty  of  want  of  ordinary  care;  sixth,  that  such  w^ant  of  ordinary 
care  was  the  proximate  cause  of  fire;  seventh,  that  this  result  was  one 
which  a  person  reasonably  well  skilled  in  the  defendant's  business  might 
reasonably  have  expected  would  probably  occur;  eighth,  that  the  plain- 
tiff did  not  give  defendant  permission  to  attach  the  wire  to  his  barn; 
ninth,  that  plaintiff  did  not  know,  before  the  fire,  that  his  barn  was 
connected  with  Floral  Hall  by  the  wire;  tenth,  that  he  did  not  know 
of  the  danger  before  the  fire;  eleventh,  that  the  plaintiff's  damages  were 
S9,258.  From  judgment  for  the  plaintiff  upon  this  verdict  the  de- 
fendant appeals. 

WiNSLOW,  J.  It  was  strenuously  and  ably  argued  by  the  appel- 
lant's counsel  that  the  evidence  did  not  show  that  the  negligent  act 
of  defendant  was  the  proximate  cause  of  the  burning  of  plaintiff's 
barn.  The  rule  is  well  settled  in  this  state  that,  in  order  to  render  a 
negligent  act  the  proximate  cause  of  an  injury,  it  must  appear  "that 
the  injury  was  the  natural  and  probable  consequence  of  the  negligence 
or  wrongful  act,  and  that  it  ought  to  have  been  foreseen  in  the  light 
of  the  attending  circumstances."  Atkinson  v.  Goodrich  Transp.  Co. 
60  Wis.  141,  156;  Marvin  v.  C,  M.  &  St.  P.  R.  Co.  79  Wis.  140.  The 
jury  found  all  the  elements  necessary  to  constitute  the  negligent 
act  of  the  defendant  the  proximate  cause  of  the  burning  of  the  barn 
within  this  rule,  and  the  question  is  whether  the  evidence  justifies  such 


SECT.  II.]  JACKSON   V.    WISCONSIN   TELEPHONE    CO.  157 

finding.  It  is  said  that  the  striking  of  a  building  by  lightning  is  a  very 
infrequent  occurrence,  and  that  it  could  not  be  reasonably  anticipated 
by  any  one.  It  is  true  that  the  number  of  buildings  which  are  struck 
by  lightning,  as  compared  with  the  whole  number  of  buildings  in  any 
given  locality,  is  very  small;  but  this  fact  by  no  means  seems  to  us  to 
be  the  final  or  controling  test  of  the  question  of  probability.  In  this 
case  there  was  a  building  situated  upon  a  high  plateau  from  eighty 
to  ninety  feet  above  the  level  of  the  surrounding  country,  with  a 
flagpole  upon  the  roof  about  twenty-five  feet  in  height.  Now,  there  ', 
are  some  facts  of  common  knowledge  known  to  every  reasonable  per- 
son who  has  passed  the  age  of  childhood.  Among  these  facts  are  that  '  AA*^^^ 
in  this  latitude  there  are  at  certain  seasons  of  the  year  frequent 
and  violent  thunderstorms;  that  at  such  times  the  clouds  are  heavily 
charged  mth  electricity,  which  constantly  finds  its  way  to  the  earth  in 
what  we  call  strokes  of  lightning;  that  these  lightning  strokes,  in  the 
great  majority  of  cases,  strike  prominent  objects,  such  as  trees,  poles, 
and  high  buildings,  and  follow  them  to  the  ground;  that  fire  is  fre- 
quently the  result  of  such  strokes.  These  facts  are  well  known  to  all 
persons,  and  no  proof  of  them  by  expert  e\'idence  is  necessary.  Can 
we  say,  as  matter  of  law,  in  \'iew  of  these  well-known  facts,  that  it  was 
entirely  improbable  that  a  building  situated,  as  Floral  Hall  was,  upon  i 
the  highest  ground  in  the  vicinity,  with  a  flagpole  upon  it,  should  be  ■" 

struck  by  a  discharge  of  lightning,  simply  because  many  buildings 
in  such  situations  escape  the  stroke  for  years?    We  think  not.^ 

By  the  court. —  Judgment  affirmed} 

Newman,  J.  The  cause  of  damages  is  proximate  only  when  it 
might  reasonably  have  been  expected  by  a  man  of  ordinary  intelli- 
gence and  prudence  that  such  damages  would  result  from  that  cause. 
Atkinson  v.  Goodrich  Transp.  Co.,  60  Wis.  141.  The  damages,  as  a 
consequence  of  the  negligent  act  or  omission,  must  be  both  natural  and 
probable.  Barton  v.  Pepin  Co.  Agr.  Society,  83  Wis.  19.  It  cannot  be 
said  of  any  particular  building  that  it  is  probable  that  it  will  be  struck 
by  lightning.  The  chances  are  very  largely  against  it.  It  could  not 
have  been  foreseen  as  likely  to  happen  that  either  Floral  Hall  or  the 
plaintiff's  barn  would  be  struck  by  lightning.  That  might  be,  in  the 
course  of  nature,  but  could  not  be  anticipated  as  probable.  The  neg- 
lect of  the  defendant  to  remove  the  wire  did  not  increase  the  danger 
or  probability  that  either  building  would  be  struck.  At  most,  it  only 
rendered  it  possible  that,  in  case  either  was  struck,  fire  might  be 
communicated  to  the  other.  It  could  not  be  the  cause  of  either  build- 
ing being  struck.  It  was  a  condition,  rather  than  the  cause,  of  the  dam- 
ages.   If  a  cause  at  all,  it  was  a  remote  cause. 

PiNNEY,  J.   I  concur  in  the  foregoing  opinion  by  Mr.  Justice  Newman. 

1  Part  of  the'opinion  is  omitted.  —  Ed. 

2  See  Beaming  v.  South  Bend  Elec.  Co.,  4.5  Ind.  App.  261,  90  N.  E.  786;  San 
Marcos  E.  L.  &  P.  Co.  ».  Compton,  48  Tex.  Civ.  App.  586,  107  S.  W.  1151.  — Ed. 


158  DETZUR   V.   B.   STROH   BREWING   CO.  [CHAP.  III. 

DETZUR  V.   B.   STROH  BREWING  CO. 

Supreme  Court  of  Michigan,  1899. 

[Reported  119  ^^lirh.  282.] 

Hooker,  J.  The  plaintiff  was  injured  by  a  piece  of  glass,  which  fell 
from  a  window^  of  the  defendant's  building,  cutting  her  arm  severely, 
and  permanently  impairing  its  use,  according  to  some  of  the  testimony 
in  the  case.  There,  is  testimony  upon  the  part  of  the  plaintiff  tending 
to  show  that  a  round  window  in  the  upper  story  was  broken  for  some 
days  or  weeks  before  the  accident,  and  that  it  was  a  piece  of  glass  from 
this  ^^^ndow  which  injured  the  plaintiff".  The  defendant  offered  testi- 
mony tending  to  show  tliat  there  was  no  broken  window  in  the  build- 
ing on  the  day  before  the  accident,  and  that  the  glass  causing  the  injury 
came  from  a  square  window,  in  a  lower  story,  and  its  fall  was  caused 
by  a  high  wind  blowing  at  the  time.  The  theory  of  the  only  count  re- 
lied upon  is  that  the  defendant  created  and  maintained  a  nuisance, 
in  an  insecurely  fastened  and  broken  window  sash  and  glass,  whereby 
the  plaintiff  was  injured.  A  verdict  of  $10,000  was  rendered  in  behalf 
of  the  plaintiff.  A  motion  being  made  for  a  new  trial,  the  court  denied 
the  same,  upon  condition  that  the  plaintiff  remit  the  sum  of  $6,500 
from  the  verdict,  which  was  done.     The  defendant  has  brought  error. 

Error  was  assigned  upon  the  refusal  of  the  court  to  charge  the 
jury  that  there  was  no  evidence  of  negligence.  It  is  urged  that  it 
cannot  be  inferred  from  the  mere  fact  that  there  was  an  accident. 
There  is  testimony  tending  to  prove  that  there  was  a  broken  window ; 
that,  immediately  before  the  accident,  a  window  or  glass  was  heard 
rattling,  and  the  witness  looked  up,  and  saw  triangular  pieces  of 
glass  falling  from  the  window,  which  she  had  previously  seen  in  a 
broken  condition;  that  several  pieces  fell  to  the  sidewalk;  and  that 
it  was  a  pleasant  day,  with  but  little  wind.  The  window  was  50  or 
60  feet  from  the  ground,  in  a  building  that  stood  but  a  few  feet  from 
the  street.  If  it  is  true  that  a  pane  of  glass  was  shivered,  as,  we  think, 
there  was  some  testimony  tending  to  show,  we  cannot  say  that  a 
jury  could  not  legitimately  find  that  it  was  negligence  to  leave  it  in 
that  condition  until  the  action  of  the  elements  loosened  it,  and  caused 
it  to  fall.  It  is  true  that,  where  there  is  no  e\'idence  suggestive  of  a  negli- 
gent cause,  no  recovery  should  be  allowed  upon  a  charge  of  negligence; 
but  this  is  not  such  a  case.  Circumstances  consistent  with  the  plain- 
tiff's theory  are  found  in  the  case,  and  offer  a  reasonable  opportunity 
for  the  inference  that  the  injury  resulted  from  a  careless  disregard  of 
the  broken  and  loosened  condition  of  glass  in  a  window  above  a  street 
where  pedestrians  were  frequently  passing. 

Counsel  say  that  it  is  common  knowledge  that  there  is  nothing 
dangerous  in  itself  in  a  broken  windowpane.  We  know  that  it  is  com- 
mon to  see  cracked  and  broken  windows,  and  we  recognize  the  fact 


SECT.  II.]      DUBUQUE   WOOD   AND    COAL   ASSOC.    V.  DUBUQUE.  159 

that  some  of  them  are  considered  safe;  but  others  are  sometimes  seen 
which  are  so  palpably  unsafe,  because  of  the  apparent  danger  of  the 
pieces  falling  or  being  shaken  out  when  the  sash  is  shaken  by  wind  or 
otherwise,  that  they  may  well  be  considered  dangerous.  As  we  cannot 
say  that  all  cracked  windows  are  safe,  we  must  submit  the  question  to 
the  jury,  when  the  testimony  tends  to  show  a  condition  of  the  window 
indicating  danger. 

In  this  connection  we  w^ll  mention  the  question  of  proximate  cause. 
Counsel  contend  that,  if  the  glass  fell  by  means  of  its  being  dislodged 
by  the  wind,  the  negligence  of  the  defendant  was  not  the  proximate 
cause  of  the  injury,  and  they  complain  of  a  refusal  to  instruct  the  jury 
that  in  such  event  the  plaintiff  should  not  be  allowed  to  recover.  The 
negligence  complained  of  is  the  maintenance  of  a  window  in  such  a  con- 
dition that  the  glass  was  liable  to  fall  out;  not  necessarily  from  its  own 
weight,  but  under  the  natural  conditions  and  strain  to  which  it  was  likely 
to  be  subjected.  It  might  not  be  negligent  to  leave  a  broken  pane, 
if  assurance  could  be  given  that  it  would  be  undisturbed  by  wind  or 
by  use.  But  wind  is  an  everyday  occurrence.  It  is  a  condition,  not 
necessarily  a  cause,  and  one  which  should  be  taken  into  consider- 
ation before  determining  that  a  broken  glass  is  not  likely  to  fall.  The 
wind  may  have  been  a  concuri'ing  circumstance,  but  it  cannot  be  said 
to  have  been  the  proximate  cause,  and  the  broken  glass  the  remote 
cause.  It  cannot  be  true  that  a  defendant  who  is  liable  if  a  defective 
glass  falls  from  its  own  weight  on  a  quiet  day  is  to  be  relieved  from  re- 
sponsibility because  its  fall  is  due  to  the  pressure  of  a  wind  which  should 
have  been  anticipated.^ 


DUBUQUE  WOOD  AND  COAL  ASSOCIATION  v.  DUBUQUE. 

Supreme  Court  of  Iowa,  1870. 

[Reported  30  la.  176.] 

Action  at  law.  The  petition  avers,  that,  prior  to  the  date  when 
plaintiff's  cause  of  action  accrued,  there  had  been  erected  and  main- 
tained a  bridge  on  Seventh  street  in  the  city  of  Dubuque  over  a  slough 
of  the  Mississippi  river;  that  Seventh  street  was  a  highway  leading 
from  the  business  portion  of  the  city  to  the  levee  upon  the  river, 
and,  as  such,  was  used  by  the  pubHc;  that  said  bridge  was  a  county 
bridge,  and  it  was  the  duty  of  the  city  as  well  as  the  county  to  rebuild 
it  after  it  became  impassable:  that  before  the  bridge  became  impass- 
able, a  large  quantity  of  wood  being  deposited  upon  the  levee,  as  was 
customary,  was  purchased  by  plaintiffs  for  the  purpose  of  reselling 
to  its  customers  in  the  city  of  Dubuque;  that  the  levee  was  liable  to 

^  The  remainder  of  the  opinion  is  omitted.  See  Webster  v.  Rome  W.  &  O.  R.  R., 
115  N.  Y.  112,  21  N.  E.  725.  — Ed. 


160  DUBUQUE    WOOD    AND    COAL    ASSOC.    V.  DUBUQUE.      [CHAP.  III. 

be  overflowed  by  the  river,  and  the  street  upon  which  the  bridge  in 
question  was  erected  was  the  only  way  over  which  the  wood  could  have 
been  transported  to  plaintiff's  customers.  On  account  of  the  bridge 
becoming  impassable,  and  of  the  negligence  of  defendants,  in  failing 
to  rebuild  it,  plaintiff  was  unable  to  remove  his  wood.  Subsequently, 
but  prior  to  any  repairs  made  upon  the  bridge,  the  wood  was  lost  by  a 
flood  in  the  river.  The  defendants  provided  no  other  bridge  or  way, 
while  the  bridge  in  question  was  unfit  for  use,  by  which  plaintiff  could 
have  removed  the  wood. 

The  defendants  separately  demurred  to  the  petition,  alleging  that 
it  exhibited  no  cause  of  action,  and  each  claiming  not  to  be  liable  upon 
the  state  of  facts  set  out  in  the  petition.  The  demurrers  were  sus- 
tained and  plaintiff  appeals. 

Beck,  J.  It  is  not  denied,  by  the  appellees,  that  the  injury  com- 
plained of  will  support  an  action,  unless  the  injury  appears  to  be  public 
in  its  nature,  and  the  damage  claimed  too  remote,  under  the  rules  of 
the  law,  to  become  the  basis  of  a  compensatory  judgment.  The  liabil- 
ity of  the  county  and  city  for  damage,  the  direct  and  certain  result  of 
negligence  in  failing  to  repair  a  highway,  when  that  duty  is  imposed 
upon  them,  is  not  questioned  by  the  counsel  of  appellees. 

The  questions  presented  for  our  determination,  in  this  case,  are 
these:  1.  Are  the  injuries  set  out  in  the  petition,  as  the  foundation  of 
the  action,  of  such  a  public  nature,  being  shared  by  plaintiff  with  the 
public  generally,  that  recovery  therefor  is  precluded?  2.  Is  the  damage 
claimed  so  remote  that  compensation,  under  the  rules  of  the  law,  will 
not  be  given?  3.  If  the  action  can  be  maintained,  may  recovery  be 
had  against  both  of  the  defendants?  If  not  against  both,  which  one 
is  liable?  No  other  points  are  presented  in  the  argument  of  counsel 
for  our  decision. 

As  our  conclusions  upon  the  second  point  above  stated  are  decisive 
of  the  case,  it  will  be  unnecessary  to  examine  the  others. 

The  rule  limiting  the  recovery  of  damage  to  "  the  natural  and  proxi- 
mate consequence  of  the  act  complained  of"  is  universally  admitted, 
and  the  extreme  difficulty  in  its  practical  application  is  quite  as  widely 
conceded.  The  difficulty  results  not  from  any  defect  in  the  rule,  but 
in  applvang  a  principle,  stated  in  such  general  language,  to  cases  of 
diverse  facts.  The  dividing  line  between  proximate  and  remote  dam- 
ages is  so  indistinct,  if  not  often  quite  invisible,  that  there  is,  on  either 
side,  a  vast  field  of  doubtful  and  disputed  ground.  In  exploring  this 
ground  there  is  to  be  had  but  little  aid  from  the  light  of  adjudicated 
cases.  The  course  followed  in  each  case,  which  is  declared  to  be  upon 
one  side  or  the  other  of  the  dividing  line,  is  plainly  marked  out,  but  no 
undisputed  landmarks  are  established  by  which  the  dividing  line  itself 
may  be  precisely  traced.  As  so  little  aid  is  derived  from  precedents 
in  arriving  at  the  conclusion  we  have  reached,  it  would  prove  quite  use- 
less to  refer  to  them. 


SECT.  II.]     B.  PINEAPPLE   CO.  V.  ATLANTIC   COAST  LINE    R.  R.  CO.      161 

Damage  to  be  recoverable  must  be  the  proximate  consequence  of 
the  act  complained  of;  that  is,  it  must  be  the  consequence  that  follows 
the  act,  and  not  the  secondary  result  from  the  first  consequence,  either 
alone  or  in  combination  with  other  circumstances. 

An  illustration  will  serve  the  purpose  of  more  clearly  expressing  the 
principle.  An  owner  of  lumber  deposited  upon  the  levee  of  the  city 
of  Dubuque,  exposed  to  the  floods  of  the  river,  starts  with  his  team 
to  remove  it.  A  bridge  built  by  the  city  which  he  attempts  to  cross, 
from  defects  therein  falls,  and  his  horses  are  killed.  By  the  breaking 
of  the  bridge  and  the  loss  of  his  team,  he  is  delayed  in  remo\nng  his 
property.  On  account  of  this  delay  his  lumber  is  carried  away  by 
the  flood  and  lost.  The  proximate  consequence  of  the  negligence  of 
the  city  is  the  loss  of  his  horses.  The  secondary  consequence,  resulting 
from  the  first  consequence,  is  the  delay  in  removing  the  lumber,  which, 
finally,  caused  its  loss.  Damage  on  account  of  the  first  is  recoverable, 
but  for  the  second,  is  denied. 

Applying  these  principles  to  the  case  before  us,  we  conclude  that  the 
losses  for  which  recovery  is  sought  were  not  the  proximate  conse- 
quence of  the  negligence  of  defendants  complained  of  in  the  petition. 
The  proximate  consequence  of  the  bridge  of  defendants  becoming  im- 
passable was  not  the  loss  of  plaintiff's  wood.  The  loss  resulted  from  the 
flood.  It  does  not  appear  from  the  petition  that  the  negligence  of 
defendants  in  failing  to  repair  the  bridge,  whereby  plaintiff  was  pre- 
vented removing  the  wood,  exposed  plaintiff  to  any  other  loss.  All  that 
can  be  said  is,  that  defendant's  negligence  caused  plaintiff  to  delay 
removing  the  wood;  the  delay  exposed  the  wood  to  the  flood,  whereby 
it  was  lost.  Plaintiff's  damage,  then,  was  not  the  proximate  conse- 
quence of  the  acts  of  defendant  complained  of,  but  resulting  from  a 
remote  consequence  joined  with  another  circumstance,  the  flood.  The 
case  is  not  distinguishable  from  the  supposed  case  above  stated. 

In  our  opinion  the  demurrer  was  correctly  sustained.  The  other 
points  raised  in  the  case  need  not  be  noticed. 

Affirmed. 


BENEDICT    PINEAPPLE    CO.    v.    ATLANTIC    COAST    LINE 
RAILROAD    CO. 

Supreme  Court  of  Florida,  1908. 

[Reported  55  Fla.  514.] 

Whitfield,  J.^  The  main  questions  presented  are  whether  the 
negligent  burning  of  a  canvas  cover  used  to  protect  growing  pineapple 
plants  and  fruit  from  injury  by  cold  and  frost  is  a  proximate  cause 

'  Part  of  the  opinion  is  omitted.  —  Ed. 


162    B.   PINEAPPLE    CO.  V.  ATLANTIC   COAST   LINE   K.  E.  CO.    [CHAP.  IIL 

of  injury  by  cold  and  frost  to  the  growing  plants  and  fruit  before  the 
burned  cover  could  by  reasonable  diligence  be  restored,  so  as  to  give 
the  owner  a  right  to  recover  damages  for  the  injury  to  the  plants  and 
fruit  by  cold  and  frost;  and  whether  the  declaration  sufficiently  states 
that  the  alleged  negligent  act  or  omission  of  the  defendant,  whereby 
fires  escaped  from  a  passing  locomotive,  setting  fire  to  the  cover,  and 
burned  it,  is  a  proximate  cause  of  the  injury  to  the  growing  plants  and 
fruit  from  frost  and  cold. 

The  defendant  railroad  company  had  a  right  to  run  its  engine  and 
train  over  its  tracks,  but  such  right  is  coupled  \\ath  the  duty  to  so 
operate  the  engine  as  not  to  negligently  injure  the  property  of  others 
near  the  track.  The  duty  arises  by  implication  of  law  out  of  the  rela- 
tion of  the  parties  to  each  other  and  the  circumstances  of  the  case. 

To  entitle  a  party  to  recover  damages  for  his  property  injured  or 
destroyed  through  or  by  the  negligent  act  or  omission  of  another, 
the  negligence  complained  of  must  be  shown  to  have  been  a  proximate 
cause  of  the  injury.  Jackson^^lle,  T.  &  K.  W.  Ry.  Co.  v.  Peninsular 
Land,  Transp.  &  Mfg.  Co.,  27  Fla.  1,  9  South.  661,  17  L.  R.  A.  33. 

Negligence  is  a  proximate  cause  of  an  injury  when  in  ordinary, 
natural  sequence  it  causes,  or  contributes  to  causing,  the  injury, 
'vvdthout  an  intervening  independent  cause. 

The  negligent  act  or  omission  for  which  a  party  is  liable  in  damages 
is  one  that  proximately,  i.  e.,  in  ordinary,  natural  sequence,  causes, 
or  contributes  to  causing,  an  injury  to  another,  where  no  independent 
efficient  cause  of  the  injury  intervenes,  and  the  injured  party  is  not 
at  fault. 

A  negligent  act  or  omission  may  be  the  proximate  cause  of  injury, 
whether  such  injury  necessarily  or  immediately  follows  the  negligence 
or  not,  if  the  negligence  is  in  ordinary  natural,  unbroken  sequence  the 
cause  of  the  injury.  Shearman  &  Redfield  on  Neg.  §  26;  Milwaukee 
&  St.  Paul  Ry.  cJ.  v.  Kellogg,  94  U.  S.  469,  24  L.  ed.  256. 

Liability  for  negligence  extends  to  all  its  natural,  probable,  and  or- 
dinary results.  Any  injury  that  vmder  the  circumstances  is  the  nat- 
ural, probable,  and  ordinary  result  of  a  negligent  act  or  omission  is 
in  law  held  to  have  been  contemplated  by  the  negligent  party  as  a 
probable  and  proximate  result  of  the  negligence,  when  he  is  informed, 
or  by  ordinary  observation  would  have  been  informed,  of  the  facts 
and  circumstances  attending  the  negligence. 

Results  that  follow  in  ordinary,  natural,  continuous  sequence  from  a 
negligent  act  or  omission,  and  are  not  produced  by  an  independent 
efficient  cause,  are  proximate  results  of  the  negligence,  and  for  such 
results  the  negligent  party  is  liable  in  damages,  even  though  the  particu- 
lar results  that  did  follow  were  not  foreseen. 

Where  the  injury  is  caused  by  the  intervention  of  an  independent 
efficient  cause  to  which  the  defendant  did  not  contribute  and  for  which 
he  is  not  responsible,  or  is  caused  by  the  act  or  omission  of  the  plaintiff. 


SECT,  II.]     B.  PINEAPPLE   CO.  V.  ATLANTIC   COAST   LINE   R.  R.  CO.      163 

the  negligence  of  the  defendant  is  not  the  proximate  cause  of  the 
injury.  If  the  plaintiff  contributes  proximately  to  causing  the  injury, 
he  cannot  recover,  unless  otherwise  pro\'ided  by  statute. 

The  ordinary  conditions  or  forces  of  nature,  such  as  ordinary  wind, 
cold,  heat,  and  the  like,  that  are  usual  at  the  time  and  place  and 
under  the  circumstances,  and  that  reasonably  should  have  been  ex- 
pected or  foreseen  as  probable  to  occur,  are  not,  in  general,  independent, 
efficient  causes,  when  they  affect  or  operate  upon  a  negligent  act  or 
omission  in  causing  a  result.  Those  who  are  negligent  are  held  in 
law  to  know  the  usual  effect  of  ordinary  natural  conditions  and 
forces  upon  a  negligent  act  or  omission,  and  to  have  contemplated  the 
appearance  and  the  effect  of  such  conditions  and  forces  upon  their 
negligence  or  upon  its  proximate  results,  and  to  be  liable  in  damages 
for  the  natural  and  probable  proximate  results  of  the  negligence. 
13  Am.  &  Eng.  Ency.  Law  (2d  ed.)  457  et  seq.;  1  Thompson  on  Neg. 
136;  Wharton  on  Neg.  §  97. 

If  the  natural  condition  or  force  that  affects  the  negligent  act  or 
omission  is  unusual  or  extraordinary,  the  negligent  party  will  not,  in 
general,  be  held  to  have  known  of  or  contemplated  it,  unless  the  cir- 
cumstances of  the  particular  negligent  act  or  omission  are  such  that 
the  negligent  party  should  have  known  of  or  contemplated  the  prob- 
able appearance  and  effect  of  such  unusual  or  extraordinary  natural 
condition  or  force.  If  the  injury  was  caused  by  some  extraordinary 
or  unusual  natural  force  or  condition  that  could  not  have  been  foreseen, 
or  that  would  have  caused  the  injury  if  there  had  been  no  negligence, 
the  negligence  is  not  the  proximate  cause  of  the  injury. 

Where  the  injury  complained  of  is  the  result  of  the  negligence  of 
the  defendant  and  of  some  other  contributing  cause  not  an  independent 
efficient  cause,  and  the  result  could  not  have  been  produced  in  the  ab- 
sence of  either  contributing  cause,  the  defendant's  negligence  is  a 
proximate  cause  of  the  injury,  if,  under  the  circumstances  attending 
the  defendant's  negligence,  the  injury  was  a  probable,  natural,  and 
usual  result  of  the  two  contributing  causes  that  the  defendant  is  held 
to  have  contemplated,  and  the  plaintiff  or  those  for  whom  he  is  respon- 
sible did  not  contribute  proximately  to  the  injury.  Jacksonville, 
T.  &  K.  W\  Ry.  Co.  v.  Peninsular  Land,  Transp.  &  Mfg.  Co.,  27  Fla. 
1,  9  South.  661,  17  L.  R.  A.  33;  Moore  v.  Lanier,  52  Fla.  353,  42  South. 
462. 

Where  a  negligent  act  or  omission  is  a  proximate  cause  of  an  injury, 
the  negligent  party  is  liable  in  damages  for  the  usual  and  natural 
consequences  of  the  injury,  whether  the  particular  consequences  that 
followed  the  negligence  were  actually  contemplated  or  not.  For 
such  losses  as  necessarily  follow  the  injury  as  the  result  of  the  negli- 
gence, recovery  may  be  had  under  a  claim  for  general  damages.  Losses 
that  are  the  natural  and  proximate,  but  not  the  necessary,  result  of 
the  injury,   may  be  recovered  as  special  damages  when  sufficiently 


164    B.  PINEAPPLE    CO.  V.  ATLANTIC   COAST   LINE   E.  K.  CO.     [CHAP.  III. 

stated  and  claimed.    Jacksonville  Electric  Co.  v.  Batchis,  54  Fla. , 

44  South.  933. 

If,  by  a  wand  that  is  ordinarily  likely  to  occur,  a  fire,  started  by  the 
negligence  of  a  railroad  company,  is  communicated  to  and  destroys 
property  of  another,  the  company  is  liable  in  damages  for  the  property 
so  destroyed,  since  it  is  held  to  have  contemplated  all  the  natural  and 
Ordinary  consequences  of  the  negligence.  Jacksonville,  T.  &  K.  W. 
Ry.  Co.  V.  Peninsular  Land,  Transp.  &  Mfg.  Co.,  27  Fla.  1,  9  South. 
661,  17  L.  R.  A.  33;  Florida  East  Coast  Ry.  Co.  i\  AYelch  (Fla.)  44 
South.   250. 

Where  a  railroad  company  allows  water  from  its  tank  to  run  upon 
the  premises  of  another  in  the  winter  season,  and  the  water  subse- 
quently freezes  and  injures  property  on  such  premises,  the  company  is 
liable  in  damages  for  the  injury,  since  the  negligent  escape  of  the  water 
from  the  tank  in  ordinary,  natural  sequence  caused  a  result  that  under 
the  circumstances  should  have  been  expected.  The  negligence  of  the 
company  in  permitting  the  water  to  run  on  the  premises  was  the 
proximate  cause  of  the  injury  to  the  property  from  the  freezing  of 
the  water.     Chicago  &  Northwestern  Ry.  Co.  v.  Hoag,  90  111.  339. 

Where  a  means  such  as  a  fence  or  a  cover,  or  the  like,  has  been  pro- 
vided by  the  owner  of  property  to  protect  it  from  an  injury  that 
will  probably  occur,  and  such  means  are,  wathout  the  fault  of  the 
owner,  injured  or  destroyed  by  the  negligent  act  or  omission  of  another, 
who  under  the  circumstances  of  the  case  knew,  or  should  have  known, 
of  the  use  to  which  the  means  was  applied  and  of  the  injury  that  would 
probably  result  from  the  destruction  of  such  means,  damages  may  be 
recovered  for  injuries  to  the  property  that  was  so  protected,  which 
proximately  follow  or  result  from  the  destruction  of  the  means  pro- 
\'ided  for  the  protection  of  the  property  injured.  Garrett  v.  Sewell, 
108  Ala.  521,  18  South.  737;  Krebs  Mfg.  Co.  v.  Brown,  108  Ala.  508, 
18  South.  659,  54  Am.  St.  Rep.  188;  Miller  t.  St.  Louis,  I.  M.  &  S.  Ry. 
Co.,  90  Mo.  389,  2  S.  W.  439. 

The  declaration  alleges  that  the  defendant  so  carelessly  and  negli- 
gently managed  and  operated  one  of  its  locomotives  that  fire  es- 
caped therefrom  and  set  fire  to  and  burned  the  canvas  or  cloth  covering 
to  a  pinery  of  growing  plants  "situated  near  to  the  track  of  the  de- 
fendant." 

Owners  of  property  have  a  right  to  use  it  in  any  manner  desired 
that  is  not  inconsistent  with  the  rights  of  others.  This  includes  the 
right  of  those  ha\"ing  land  near  a  railroad  track  to  place  a  canvas  cover 
over  plants  growing  on  the  land,  and  the  mere  fact  that  the  cover  is 
within  the  reach  of  sparks  of  fire  emitted  from  a  locomotive  engine 
passing  on  the  track  near  by  does  not  relieve  the  railroad  company 
from  liability  for  its  negligence  in  permitting  the  sparks  to  escape  and 
burn  the  cover.  While  those  ha\'ing  property  are  charged  with  the 
duty  of  caring  for  it,  there  is  no  obligation  to  constantly  guard  and  pro- 


iJt'-^ 


SECT.  II.]     B.  PINEAPPLE    CO.  V.  ATLANTIC    COAST   LINE   R.  K.  CO.      165 

tect  it  from  injury  by  the  negligence  of  others.  See  Jacksonville, 
T.  &  K.  W.  Ry.  Co.  i\  Peninsular  Land,  Transp.  &  Mfg.  Co.,  27  Fla. 
1,  9  South.  6G1,  17  L.  R.  A.  33. 

It  is  alleged  that  the  canvas  cover  placed  over  growing  pineapple 
plants  and  fruits  to  protect  them  from  injury  by  cold  and  frost  was 
destroyed  by  the  negligence  of  the  defendant,  who  should  have  known 
the  use  of  the  cover  and  the  protection  it  afforded,  and  that,  because 
of  the  destruction  of  the  cover,  a  cold  and  frost  that  ordinarily  should 
have  been  expected  as  likely  to  occur  at  the  time  and  place  did  occur 
and  injured  the  plants  and  fruit  without  the  fault  of  the  plaintiff. 

If  the  negligent  burning  of  the  canvas  cover  to  the  growing  pine- 
apple plants  and  fruit  defeated  the  sole  object  for  which  the  cover 
was  used,  and  such  negligent  burning  of  the  cover  in  ordinary,  natural 
sequence  caused  the  injury  to  the  growing  plants  and  fruit  by  cold 
and  frost  that  under  the  circumstances  should  have  been  expected 
as  likely  to  occur  and  injure  the  plants  at  the  time  and  place  of  the 
negligent  burning  of  the  cover,  such  negligent  burning  was  the  proxi- 
mate cause  of  the  injury  to  the  growing  plants  and  fruit  from  cold  and 
frost. 

Injury  to  growing  pineapple  plants  and  fruit  by  ordinary  cold  and 
frost  that  should  have  been  expected  as  likely  to  occur  is  not  such  an  '  J   M  -4 

act  of  God  as  will  relieve  from  liability  for  such  injury  a  railroad  0^^  ^ 
company  that  negligently  burned  the  cover  over  the  plants  and  fruit, 
which  cover  was  used  solely  to  protect  the  plants  and  fruit  and  would 
have  prevented  the  injury.  See  Norris  v.  Savannah,  F.  &  W.  Ry.  Co., 
23  Fla.  182,  1  South.  475,  11  Am.  St.  Rep.  355;  Texas  &  P.  Ry.  v. 
Coggin  &  Dunaway  (Tex.  Civ.  App.)  99  S.  W.  1052. 

If  the  injury  would  not  have  resulted  from  the  cold  and  frost,  but 
for  the  negligent  burning  of  the  cover,  the  defendant  is  liable,  as 
such  negligence  made  effective  and  injurious  an  ordinary  natural 
condition  that  should  have  been  contemplated  and  that  would  other- 
wise have  been  harmless. 

Under  the  allegations  of  the  declaration,  the  negligent  burning 
of  the  cover  was  a  primary  and  efficient  act  that  in  ordinary,  natural 
sequence  caused  the  injury  to  the  growing  plants  and  fruit  by  cold 
and  frost;  such  injury  not  being  the  result  of  an  intervening  independ- 
ent efficient  cause,  or  of  an  extraordinary  or  unusual  frost  and  cold 
that  could  not  have  been  foreseen,  or  that  would  have  injured  the 
plants  if  the  cover  had  not  been  burned  by  the  negligence  of  the  defend- 
ant. If  this  is  proved,  the  plaintiff  may  recover  damages  for  the  in- 
jury. 

The  count  of  the  original  declaration  upon  which  recovery  was  had 
was  held  to  be  "fatally  defective  in  not  alleging  negligence,  either 
of  commission  or  omission,  on  the  part  of  the  defendant  in  commun- 
icating the  fire"  to  the  canvas  cover,  and  also  in  not  alleging  facts 
"sufficient  to  bring  home  to  the  defendant  that  the  burning  might 


16G     B.  PINEAPPLE   CO.  V.  ATLANTIC    COAST  LINE    R.  R.  CO.    [CHAP.  IIL 

reasonably  have  been  expected  to  result  directly  and  naturally  in 
damage  to  the  plants  and  fruit  by  cold  and  frost."  Atlantic  Coast 
Line  Ry.  Co.  v.  Benedict  Pineapple  Co.,  52  Fla.  IGo,  42  South.  529. 

Where  negligence  is  the  basis  of  recovery,  the  declaration  should 
contain  allegations  of  the  negligent  act  or  omission  of  the  defendant, 
and  also  allegations  of  facts  to  show  injury  to  the  plaintiff,  and  that 
such  injury  was  a  proximate  result  of  the  negligence  alleged. 

The  declaration  now  in  the  first  count  alleges  that  the  defendant 
"so  carelessly  and  negligently  managed  and  operated  one  of  its  loco- 
motives while  drawing  a  train  of  cars  .  .  .  that  fire  escaped  from  said 
locomotive  and  set  fire  to  the  canvas  or  cloth  with  which  a  pinery 
belonging  to  the  plaintiff  and  situated  near  to  the  track  of  the  defend- 
ant .  .  .  was  covered,  and  burned  a  large  part,  to  wit,  about  one 
acre,  of  the  said  cover."  This  is  a  sufficient  allegation  of  a  negligent 
act  of  the  defendant  in  communicating  fire  to  the  canvas  cover,  and 
of  injury  resulting  proximately  therefrom  to  the  plaintiff  when  taken 
with  the  claim  for  damages,  to  authorize  a  recovery  of  general  damages 
or  such  as  naturally  and  necessarily  result  from  the  burning  of  the  can- 
vas cover  to  the  extent  of  its  value. 

As  special  damages  resulting  from  the  negligent  act  alleged,  the 
first  count  further  states:  "That,  in  the  said  pinery,  a  large  number 
of  pineapple  plants  and  fruit  were  growing  and  were  likely  to  be 
damaged  by  frost  and  cold  in  the"  stated  \qcinity  and  "the  latitude 
thereof  in  the  winter  season,  and  that  it  was  usual  and  customary  in 
and  about  the  said"  vicinity  "and  latitude  to  cover  pineries  with  can- 
vas or  cloth  in  order  to  protect  the  plants  and  fruit  growing  there- 
in from  damages  by  frost  and  cold,"  and  to  keep  in  the  heat  supplied 
by  fires  maintained  in  the  pineries  during  spells  of  frost  and  cold 
which  ordinarily  come  in  the  winter  season  on  short  notice  and  would 
othen\nse  damage  the  plants  and  fruit;  that,  in  accordance  with  said 
custom,  plaintiff  provided  said  pinery  with  a  good  canvas  or  cloth 
cover,  and  also  provided  stoves  and  fuel  therein,  ready  and  sufficient 
within  the  covered  pinery  to  heat  the  same  immediately  upon  the 
coming  of  frost  and  cold  dangerous  to  the  plants  and  fruit,  and  thus 
preserve  them  from  damage  therefrom;  "that  shortly  after  the  burn- 
ing of  the  portion  of  the  cover  as  aforesaid,  and  before  the  plaintiff 
by  exercise  of  any  reasonable  diligence  by  it  could  replace  the  part  of 
the  cover  which  had  been  burned  through  the  negligence  of  the  de- 
fendant as  aforesaid,  the  plants  and  fruit  were  damaged  by  frost  and 
cold  for  want  of  the  complete  cover  and  the  subsequent  inability  of 
the  plaintiff  to  control  the  temperature  A\athin  said  pinery;  that  the 
defendant  well  knew,  or  ought  to  have  known,"  of  the  custom,  condi- 
tions, and  circumstances  alleged;  and  that  the  "damage  was  caused 
by  the  negligence  of  the  defendant  in  burning  part  of  the  cover  as 
aforesaid."     Damages  are  claimed  in  $10,000. 

As  the  defendant  is  liable  for  such  injurious  results  as  were  likely 


SECT.  II.]      B.  PINEAPPLE    CO.    V.  ATLANTIC    COAST    LIKE    R.  R.  CO.      167 

to  and  did  naturally  and  proximately  follow  its  negligence,  it  was 
not  necessary  to  allege,  as  contended,  "that  at  the  time  of  the  occur- 
rence of  the  fire  the  weather  was  such  that  cold  or  frost  could  be  anti- 
cipated by  the  defendant,"  or  "  that  in  the  month  of  January  cold  or 
frost  of  such  character  as  to  damage  pineapple  plants  ordinarily  oc- 
curred." That  the  month  of  January,  when  the  fire  occurred,  was  "in 
the  winter  season,"  the  court  knows  judicially,  and  there  are  allegations 
that  pineapple  plants  and  fruit  are  likely  to  be  damaged  by  frost  and 
cold  in  the  \'icinity  stated  in  the  winter  season,  that  it  was  usual 
and  customary  there  to  cover  the  growing  plants  with  canvas  to  pro- 
tect them  from  damage  by  frost  and  cold,  and  that  the  defendant 
knew,  or  should  have  known,  of  all  the  circumstances  alleged.  If  the 
frost  or  cold  of  any  degree  injured  the  plants  or  fruit  under  the  circum- 
stances alleged,  as  the  proximate  result  of  the  defendant's  negligence, 
it  is  not  necessary  to  state  the  extent  of  the  frost  or  cold  necessary  to 
the  damage,  or  that  such  frost  or  cold  was  likely  to  come  at  the  time 
the  fire  occurred,  because  of  the  then  condition  of  the  weather,  as  is 
insisted  by  the  defendant  in  error. 

If  the  defendant  was  negligent  in  burning  the  cover,  it  cannot  be 
relieved  from  liability  for  the  proximate  results  of  such  negligence 
on  the  ground  that  an  ordinary  natural  condition,  i.  e.,  frost  and  cold, 
intervened,  when  such  ordinary  cold  and  frost  should  have  been  ex- 
pected as  probably  to  occur  at  the  time  and  place  of  the  negligence. 

The  declaration  in  effect  alleges  that  the  cold  which  injured  the  plants 
should,  under  the  circumstances,  have  been  contemplated  by  the  de- 
fendant as  likely  to  occur,  that  the  injury  was  the  natural  result  of  the 
cold,  and  that  such  injury  would  not  have  resulted  but  for  the  negli- 
gence of  the  defendant  that  caused  the  fire  to  destroy  the  covering 
to  the  plants.  The  demurrer  admits  this.  It  is  in  effect  alleged  that 
by  ordinary,  natural  sequence  the  negligence  of  the  defendant  in 
starting  the  fire  burned  the  covering,  thereby  exposing  the  growing 
plants  and  fruit  to  an  injurious  cold  and  frost  that  under  the  circum- 
stances stated  should  have  been  expected  as  likely  to  occur,  and  the 
plants  and  fruit  Mere  injured  by  such  cold  and  frost  without  the  fault 
of  the  plaintiff,  because  the  covering  was  destroyed  by  the  fire  started 
by  defendant's  negligence.  It  is  sufficiently  alleged  that  the  negligence 
of  the  defendant  was  the  proximate  cause  of  the  injury  to  the  plants 
and  fruit  by  cold  and  frost. 

The  cold  that  injured  the  plants  was  not  an  independent  efficient 
cause  occurring  between  the  negligence  of  the  defendant  and  the  in- 
jury by  cold  and  frost,  as  such  injury  was  the  natural  and  ordinary 
result  of  cold  and  frost  that  it  is  alleged  should  have  been  expected 
as  likely  to  occur  as  an  ordinary  or  usual  natural  condition  that  would 
not  have  been  harmful  to  the  plants  if  the  covering  had  not  been  de- 
stroyed by  the  fire  negligently  started  l)y  the  defendant.^ 

1  See  also  Williams  v.  Atlantic  Coast  Line  R.  R.,  56  Fla.  735,  48  So.  209.—  Ed. 


16S  DEN>"Y  V.  >*E\V  YORK  CENTRAL  RAILROAD  CO.       [CHAP.  III. 

DENNY    V.    NEW   YORK   CENTRAL   RAILOAD   CO. 
Supreme  Judicial  Court  of  Massachusetts,  1859. 

[3  Gray,  4SL] 

Merrick.  J.  This  action  is  brought  to  recover  compensation  for 
damages  alleged  to  have  been  sustained  by  the  plaintiff  in  consequence 
of  an  injury  to  a  quantity  of  his  wool  delivered  to  the  defendants  to  be 
transported  for  hiiu  from  Suspension  Bridge  to  Albany.  It  appears 
from  the  report  that  the  wool,  directed  to  Boston,  was  received  by  them 
at  the  former,  and  carried  to  the  latter  place,  and  was  there  safely  de- 
posited in  their  freight  depot.  But  it  was  not  transported  seasonably 
nor  with  reasonable  dispatch.  By  their  failure  to  exercise  the  degree 
of  care  and  diligence  required  of  them  by  law,  it  was  detained  six  days 
at  Syracuse,  and  consequently  arrived  at  Albany  so  many  days  later 
than  it  should  regularly  have  been  there.  Whilst  it  was  lying  in  the 
defendant's  freight  depot  in  that  city,  it  was  submerged  by  a  sudden 
and  violent  flood  in  the  Hudson  River.  This  rise  of  the  water  caused 
the  alleged  injury  to  the  wool. 

Upon  the  evidence  adduced  by  the  parties  at  the  trial,  three  ques- 
tions of  fact  were  submitted  to  the  determination  of  the  jury.  It  is 
necessary  now  to  advert  only  to  the  first  of  those  questions ;  for  the 
finding  of  the  jury  in  relation  to  the  second  was  in  favor  of  the  defend- 
ants, and  the  verdict  in  relation  to  the  third  has  on  their  motion  been 
already  set  aside  as  having  been  rendered  against  the  weight  of  evidence 
in  the  case. 

In  looking  at  the  terms  and  language  in  which  the  action  of  the  jury 
in  reference  to  the  first  of  these  questions  is  expressed,  it  would  perhaps, 
at  first  sight,  seem  that  they  had  passed  upon  and  determined  the  pre- 
cise point  in  issue  between  the  parties,  namely,  whether  the  wool  was 
injured  by  reason  of  an  omission  on  the  part  of  the  defendants  to  exer- 
cise the  care  and  diligence  in  the  transportation  of  the  wool,  which  the 
law  required  of  them  as  common  carriers.  If  this  were  so,  it  would 
have  been  a  final  and  conclusive  determination.  But  upon  a  closer 
scrutiny  of  the  statements  in  the  report,  it  appears  that  the  jury,  by 
their  answer  to  the  question  submitted  to  them,  intended  only  to 
affirm,  that  the  defendants  failed  to  exercise  due  care  and  diligence 
in  the  prompt  and  seasonable  transportation  of  the  wool,  and  that  by 
reason  of  this  failure  and  the  consequent  detention  of  the  wool  at  Syra- 
cuse it  was  injured  by  the  rise  of  water  in  the  Hudson,  and  thereby  sus- 
tained damage  to  which  it  would  not  have  been  exposed  if  it  had  arrived 
at  Albany  as  soon  as  it  should  have  done,  because  in  that  event  it  would 
have  been  taken  away  from  the  defendants'  freight  depot,  and  carried 
forward  to  Boston  before  the  occurrence  of  the  flood.  And  it  was  upon 
this  ground  that  the  verdict  was  rendered  for  the  plaintiff".  This  was 
so  considered  by  both  parties  in  their  arguments  upon  the  questions  of 
law  arising  upon  the  report. 


SECT.  II.]         DENNY  V.    NEW  YORK  CENTRAL  RAILROAD  CO.  169 

It  is  therefore  now  to  be  determined  hy  the  court,  whether  the  defend- 
ants are,  b}-  reason  and  in  consequence  of  their  negligence  in  the  prompt 
and  seasonable  transportation  of  the  wool,  responsible  for  the  injury 
which  it  sustained  after  it  was  safely  deposited  in  their  depot  at  Albany. 
And  we  think  it  is  very  plain  that,  upon  the  well  settled  principles  of 
law  applicable  to  the  subject,  they  are  not. 

It  is  said  to  be  an  ancient  and  universal  rule  resting  upon  obvious 
reason  and  justice,  that  a  wrongdoer  shall  be  held  responsible  only 
for  the  proximate  and  not  for  the  remote  consequences  of  his  actions. 
2  Parsons  on  Con.  456.  The  rule  is  not  limited  to  cases  in  which  special 
damages  arise ;  but  is  applicable  to  ever}'  case  in  which  damage  results 
from  a  contract  violated  or  an  injurious  act  committed.  2  Greenl.  Ev. 
§  256.  2  Parsons  on  Con.  457.  And  the  liabilities  of  common  carriers, 
like  persons  in  other  occupations  and  pursuits,  are  regulated  and  gov- 
erned by  it.  Storv  on  Bailments,  586.  Angell  on  Carriers,  201. 
Morrison  v.  Davis,  20  Penn.  State  R.  171. 

In  the  last  named  case,  it  is  said  that  there  is  nothing  in  the  policy 
of  the  law  relating  to  common  carriers,  that  calls  for  any  different  rule, 
as  to  consequential  damages,  to  be  applied  to  them.  In  that  case  may 
be  found  not  only  a  clear  and  satisfactory  statement  of  the  law  upon  the 
subject,  but  a  significant  illustration  of  the  rule  which  the  decision  rec- 
ognizes and  affirms.  It  was  an  action  against  the  defendants,  as  com- 
mon carriers  upon  the  Pennsylvania  Canal.  It  appeared  that  their  canal 
boat,  in  which  the  plaintiff's  goods  were  carried,  was  wrecked  below 
Piper's  Dam,  by  reason  of  an  extraordinary  flood  ;  that  the  boat  started 
on  its  voyage  with  a  lame  horse,  and  by  reason  thereof  great  dela}'  was 
occasioned  in  the  transportation  of  the  goods  ;  and  that,  had  it  not  been 
for  this,  the  boat  would  have  passed  the  point  where  the  accident  occurred, 
before  the  flood  came,  and  would  have  arrived  in  time  and  safet}'  at  its 
destination.  The  plaintiff  insisted  that,  inasmuch  as  the  negligence  of 
the  defendants  in  using  a  lame  horse  for  the  voyage  occasioned  the  loss, 
they  were  therefore  liable  for  it.  But  the  court,  assuming  that  the  flood 
was  the  proximate  cause  of  the  disaster,  held,  that  the  lameness  of  the 
horse,  by  reason  of  which  the  boat,  in  consequence  of  his  inability 
thereby  to  carry  it  forward  with  the  usual  and  ordinary'  speed,  was  ex- 
posed to  the  influence  and  dangers  of  the  flood,  was  too  remote  to  make 
the  defendants  responsible  for  the  goods  which  were  lost  in  the  wreck. 
It  was  only,  in  connection  with  other  incidents,  a  cause  of  the  final,  direct 
and  proximate  cause  bv  which  the  damages  sought  to  be  recovered  were 
immediately  occasioned. 

There  is  so  great  a  resemblance  between  the  circumstances  upon 
which  the  determination  in  that  case  was  made,  and  those  upon  which 
the  question  under  consideration  in  tiiis  arises,  that  the  decision  in  both 
ought  to  be  the  same.  In  this  case,  the  defendants  failed  to  exercise 
due  care  and  diligence,  in  not  being  possessed  of  a  sufficient  number 
of  efficient  working  engines  to  transport  the  })laintiff's  wool  with  the 
usual,  ordinary  and  reasonable  speed.     The  consequence  of  this  fail- 


170  FOX  V.  BOSTON  AND  MAINE  RAILROAD  CO.  [CHAP.  III. 

lire  on  their  part  was  that  the  wool  was  detained  six  days  at  Syracuse. 
This  was  the  full  and  entire  effect  of  their  negligence,  and  for  this  they 
are  clearly  responsible.  But  in  all  that  occurred  afterwards  there  was 
I  no  failure  in  the  performance  of  their  duty.  There  was  no  delay  and 
no  negligence  in  any  part  of  the  transportation  between  Syracuse 
I  and  Albany,  and  upon  reaching  the  latter  place  the  wool  was  safely  and 

I  properly  stoi^d  in  their  freight  depot.     Jt  was  their  duty  to  make  this 

',  disi)osition  of  it.  They  had  then  reached  the  terminus  of  their  road; 
j  the  carriage  of  the  goods  was  then  complete  ;  and  the  duty  only  re- 
j  mained  of  making  delivery.     The  deposit  of  the  wool  in  the  depot  was 

--  the  only  delivery  which  they  were  required  to  make  ;  and  having  made 
that,  their  Ua,bilities  as  carriers  thenceforward  ceased.  Ir  was  there  to 
be  received  by  the  owner,  or  taken  up  by  the  proprietors  of  the  railroad 
next  in  course  of  the  route  to  Boston.  Norway  Plains  Co.  v.  Boston  & 
Maine  Railroad,  1  Gray,  263.  Nutting  v.  Connecticut  River  Railroad, 
1  Gray,  502.  The  rise  of  waters  in  the  Hudson,  which  did  the  mischief 
to  the  wool,  occurred  at  a  period  subsequent  to  this,  and  consequently 
was  the  direct  and  proximate  cause  to  which  that  mischief  is  to  be  at- 
tributed. The  negligence  of  the  defendants  was  remote ;  it  had  ceased 
to  operate  as  an  active,  efficient  and  prevailing  cause  as  soon  as  the 
wool  had  been  carried  on  beyond  Syracuse,  and  cannot  therefore  sub- 
ject them  to  responsibility  for  an  injury  to  the  plaintiff's  property,  re- 
sulting from  a  subsequent  inevitable  accident  which  was  the  proximate 
cause  by  which  it  was  produced.  It  is  to  the  latter  only  to  which  the 
loss  sustained  by  him  is  attributable. 

It  follows  from  these  considerations,  that  the  verdict  in  the  plaintiff's 
behalf  must  be  set  aside,  and  a  new  trial  be  had  ;  in  which  he  will  re- 
cover such  damages  as  he  proves  were  the  direct  consequence  of  the 
negligence  of  which  the  defendants  may  be  shown  to  have  been  guilty. 

JVeiv  trial  ordered. 


FOX   V.    BOSTON   AND   MAINE    RAILROAD   CO. 

Supreme  Judicial  Court  of  Massachusetts,  1889. 

[148  Mass.  220  ] 

Morton,  C.  J.  The  plaintiff  offered  to  prove  that  on  February  22, 
1881,  he  made  a  special  contract  with  the  defendant,  by  the  terms  of 
which  it  was  to  transport  a  car-load  of  apples  from  Haverhill  to  Port- 
land, and  deliver  it  to  the  Maine  Central  Railroad,  a  connecting  rail- 
road, in  time  to  be  transported  by  the  latter  corporation  to  Bangor  by 
a  freight  train  which  left  Portland  early  in  the  morning  of  February 
23 ;  that  the  weather  was  mild  on  the  22d  and  23d  days  of  February, 
and  that  "  the  agreement  with  the  defendan-t  was  made  with  reference 
to  the  mildness  of  the  weather,  and  the  importance  of  having  the 
apples  delivered  to  the  Maine  Central  Railroad  at  the  agreed  time  "  ; 
that  the  defendant  negligently  delayed  to  deliver  the  apples  at  the  time 


SECT.  II.]  FOX  V.  BOSTON  AND  MAINE  RAILROAD  CO.  171 

agreed,  and  by  reason  of  this  negligence  they  "were  caught  in  cold 
weather  in  course  of  transportation  from  Portland  to  Bangor,  arriving 
at  the  latter  place  in  a  frozen  condition."  The  presiding  judge  ruled 
that,  "if  the  market  value  of  the  ai)ples  when  they  reached  Portland 
was  only  diminished  in  the  respect  that  a  liability  of  being  frozen 
during  the  course  of  the  transportation  by  the  Maine  Central  Railroad 
was  incurred  or  increased  by  reason  of  the  negligent  delay  of  the  de- 
fendant in  the  transportation  from  Haverhill  to  Portland,  the  plaintiff 
caimot  recover  in  this  action  for  that  diminution  in  market  value."  If 
we  understand  this  ruling,  its  effect  was  to  restrict  the  plaintiff's  right 
to  recover  to  the  diminution  in  the  market  value  of  the  apples  at  Port- 
land caused  by  the  delay,  and  to  prevent  his  recovering  anything  for 
the  damage  to  the  apples  by  freezing  in  the  transportation  from  Port- 
land to  Bangor. 

The  general  rule  is,  that  where  goods  are  delivered  in  the  usual  way 
to  a  carrier  for  transportation,  and  there  is  a  negligent  delay  in  de- 
livering them,  the  measure  of  damage  is  the  diminution  in  the  market 
value  of  the  goods  between  the  time  when  they  ought  to  have  been  de- 
livered and  the  time  when  they  were  in  fact  delivered.  Ingledew  v.  North- 
ern Railroad,  7  Gray.  86.  Cutting  r.  Grand  Trunk  Railway,  13  Allen, 
381.  Scott  V.  Boston  &  New  Orleans  Steamship  Co.,  106  Mass.  468. 
Harvey  r.  Connecticut  &  Passumpsic  Rivers  Railroad,  124  Mass.  421. 
These  cases  are  put  upon  the  ground  that  the  duty  of  the  carrier  is  the 
measure  of  his  liability ;  that  his  duty  is  to  carry  the  goods  to  the  end 
of  his  line,  and  that  any  future  risks  to  which  the  goods  may  be  ex- 
posed are  not  within  the  contemplation  of  the  parties  or  the  scope  of 
their  contract.  But  we  think  a  different  rule  prevails  where  the  parties 
make  a  special  contract,  which  provides  for  certain  risks  to  which  the 
goods  are  exposed  on  the  connecting  line. 

Thus,  in  the  case  before  us,  the  parties  made  a  special  contract,  by 
which  the  defendant  agreed  to  deliver  the  apples  to  the  Maine  Central 
Railroad  by  a  fixed  time,  so  that  they  would  arrive  in  Bangor  in  the 
afternoon  of  February  23.  Both  parties  knew  that  the  apples  were 
not  to  be  sold  in  Portland,  but  were  to  be  forwarded  to  Bangor,  and 
the  special  contract  was  made  for  the  purpose  of  avoiding  the  danger 
of  the  apples  freezing  on  the  connecting  line.  This  risk  was  antici- 
pated and  contemplated  by  the  parties,  and  if  the  danger  which  it  was 
intended  to  provide  against  was  incurred  by  reason  of  the  negligent 
failure  of  the  defendant  to  perform  its  contract,  it  ought  to  be  respon- 
sible in  damages.  The  damages  are  not  too  remote.  If  the  freezing 
had  occurred  on  the  defendant's  line,  it  cannot  be  doubted  that  the 
law  would  regard  the  delay  as  the  proximate  cause  of  the  damage ;  it 
is  none  the  less  so,  because  it  happened  on  a  connecting  line.  The 
damage  was  not  caused  by  any  extraordinary  event  subsequently 
occurring,  but  was  caused  by  an  event  which  was,  according  to  the 
common  experience,  naturally  and  reasonably  to  be  expected,  a  change 
of  temperature. 


172      GREEN-WHEELER  SHOE  CO,  V.  CHICAGO,  ETC.,  RY.  CO.      [CHAP.  III. 

The  case  is  thus  distinguished  from  the  cases  of  Denny  v.  New 
York  Central  Raih-oad,  13  Gray,  481,  and  Hoadley  r.  Northern 
Transportation  Co.,  115  Mass.  304.  In  each  of  these  cases,  the  loss  to 
the  plaintiff  was  caused  by  an  extraordinary  event,  a  fire  and  a 
freshet ;  and  the  court  held  that  the  defendants,  although  guilty  of 
negligent  delay,  were  not  responsible,  because  the  event  was  not  one 
which  would  reasonably  be  anticipated.  In  the  case  at  bar,  the  event 
which  caused  the  loss  was  contemplated  by  the  parties  when  they  made 
their  contract  as  a  probable  consequence  of  the  breach  of  it. 

The  case  before  us  is  distinguishable  from  Ingledew  v.  Northern 
Railroad,  7  Gray,  86.  In  that  case  the  opinion  is  based  upon  the 
ground,  that  it  did  not  appear  that  "  the  defendants  assumed  any  duty 
in  relation  to  the  delivery  of  the  boxes  to  another  carrier,"  or  that  they 
"  were  charged  with  any  duty  in  forwarding  the  ink  to  Keene,  or  that 
the  officers  of  the  defendant  corporation  knew  of  its  destination  beyond 
their  own  line."  The  facts  of  the  two  cases  are  different,  and  for  the 
reasons  above  stated  we  are  of  opinion  that  different  rules  of  damages 
are  to  be  applied  in  them,  and  that  in  the  case  at  bar,  upon  the  facts 
which  he  offered  to  prove,  the  plaintiff  is  entitled  to  recover  the  damage 
which  he  sustained  by  reason  of  the  freezing  of  the  apples  between 
Portland  and  Bangor.  Exceptions  sustained. 


GREEN-WHEELER  SHOE   CO.   v.  CHICAGO,   ROCK  ISLAND 
AND   PACIFIC    RAILWAY   CO. 

Supreme  Court  of  Iowa,  1906. 

[130 /a.  123.] 

McClaix,  C.  J.  In  the  agreed  statement  on  which  the  case  was 
tried  without  other  evidence  being  introduced  it  is  stipulated  that  the 
defendant  was  guilty  of  negligent  delay  in  the  forwarding  of  the  goods 
of  plaintiff  from  Ft.  Dodge  to  Kansas  City,  where  they  were  lost  or 
injured  on  May  30,  1903,  by  a  flood  which  was  so  unusual  and  extra- 
ordinary as  to  constitute  an  act  of  God,  and  that  if  there  had  been  no 
such  negligent  delay  the  goods  would  not  have  been  caught  in  the  flood 
referred  to  or  damaged  thereby. 

We  have  presented  for  our  consideration,  therefore,  the  simple  ques- 
tion whether  a  carrier  who  hy  a  negligent  delay  in  transporting  goods 
has  subjected  them,  in  the  course  of  transportation,  to  a  peril  which 
has  caused  their  damage  or  destruction,  and  for  the  consequence  of 
which  the  carrier  would  not  have  been  liable  had  there  been  no  negli- 
gent delay  intervening,  is  liable  for  the  loss. 

On  this  question  there  is  a  well-recognized  conflict  in  the  authorities. 
In  several  well-considered  cases  decided  by  courts  of  high  authority  it 
was  decided,  while  the  question  was  still  new,  that  the  negligent  delay 
of  the  carrier  in  transportation  could  not  be  regarded  as  the  proximate 


I 


SECT.  II.]       GREEX-WHEELER  SHOE  CO.  V.  CHICAGO,  ETC.,  RY.  CO.         173 

cause  of  an  ultimate  loss  by  a  casualty  whicla  in  itself  constituted  an 
act  of  God,  as  that  term  is  used  iu  defining  the  carrier's  exemption 
from  liability,  although  had  the  goods  been  transported  with  reasonable 
diligence  they  would  not  have  been  subjected  to  such  casualty,  and 
these  cases  are  very  similar  to  the  one  before  us  inasmuch  as  the  loss 
in  each  instance  was  due  to  the  goods  being  overtaken  by  an  unprece- 
dejited  flood  for  the  consequence  of  which  the  carrier  would  not  be 
responsible.  Morrison  v.  Davis,  20  Pa.  171  (57  Am.  Dec.  695); 
Denny  v.  New  York  Cent.  R.  Co.,  13  Gray  (Mass.),  481  (74  Am.  Dec. 
645)  ;  Railroad  Co.  v.  Reeves,  10  Wall.  176  (19  L.  Ed.  909);  Daniels 
V.  Ballantine,  23  Ohio  St.  532  (13  Am.  Rep.  264; ;  Hunt  v.  Missouri, 
K.  &  T.  R.  Co.  (Tex.  Civ.  App.),  74  S.  W.  69;  Gleesoa -y.  Virginia 
Midland  R.  Co.,  5  Mackey  (D.  C),  356.  These  cases  are  predicated 
upon  the  view  that  if  the  carrier  could  not  reasonably  have  foreseen  or 
anticipated  that  the  goods  would  be  overtaken  by  such  a  casualty  as 
a  natural  and  probable  result  of  the  delay,  then  the  negligent  delay  was 
not  the  proximate  cause  of  the  loss,  and  should  be  disregarded  in 
determining  the  liability  for  such  loss.  A  similar  course  of  reasoning 
has  been  applied  in  other  cases,  where  the  loss  has  been  due  immedi- 
ately to  some  cause  such  as  accidental  fire  involving  no  negligence  on 
the  part  of  the  carrier  and  within  a  valid  exception  in  the  bill  of  lading, 
but  the  goods  have  been  brought  within  the  peril  stipulated  against  by 
negligent  delay  in  transportation.  Hoadley  v.  Northern  Trans.  Co., 
115  Mass.  304  (15  Am.  Rep.  106)  ;  Yazoo  &  M.  V.  R.  Co.  v.  Millsaps, 
76  Miss.  855  (25  South.  672,  71  Am.  St.  Rep.  543);  General  Fire 
Extinguisher  Co.  v.  Carolina  &  N.  W.  R.  Co.,  137  N.  C.  278  (47  S. 
E.  208).  For  similar  reasons  it  has  been  held  that  loss  of  or  injury  to 
the  goods  by  reason  of  their  inherent  nature,  as  by  freezing  or  the 
like,  will  not  render  the  carrier  liable,  even  after  negligent  delay  in 
transportation,  if  such  casualty  could  not  have  been  foreseen  or  antici- 
pated as  the  natural  and  probable  consequence  of  such  delay.  Michi- 
gan Cent.  R.  Co.  v.  Burrows,  33  Mich.  6  ;  Herring  v.  Chesapeake  & 
W.  R.  Co.,  101  Va.  778  (45  S.  E.  322). 

On  the  other  hand,  it  was  held  by  the  Court  of  Appeals  of  New 
Y^ork  in  a  case  arising  out  of  the  same  flood  which  caused  the  destruc- 
tion of  the  goods  involved  in  Denny  v.  New  York  Cent.  R.  Co.,  13 
Gray  (Mass.),  481  (74  Am.  Dec.  645),  supra,  that  the  preceding 
negligent  delay  on  the  part  of  the  carrier,  in  consequence  of  which  the 
goods  were  overtaken  by  the  flood,  was  sufficient  ground  for  holding 
the  carrier  to  be  liable  for  the  loss.  Michaels  v.  New  York  Cent.  R. 
Co.,  30  N.  Y.  564  (86  Am.  Dec.  415) ;  Read  r.  Spaulding,  30  N.  Y. 
630  (86  Am.  Dec.  426).  And  the  same  court  has  adhered  to  this  view 
in  case  of  a  loss  by  fire  covered  by  valid  exception  in  the  bill  of  lad- 
ing. Condict  r.  Grand  Trunk  R.  Co.,  54  N.  Y.  500.  The  Illinois 
Supreme  Court  has  consistently  followed  the  rule  of  the  New  York 
cases  in  holding  that  negligent  delay  subjecting  the  goods  to  loss  by 
the  Johnstown  flood  rendered  the  carrier  liable  (Wald  v.  Pittsburg, 


174     GREEX-WIIEELER  SHOE  CO.  V.   CHICAGO,  ETC.,  RY.  CO.     [CHAP.  III. 

C,  C.  &  St.  L.  R.  Co.,  162  111.  545,  44  N.  E.  888,  35  L.  R.  A.  356, 
53  Am.  St.  Rep.  332)  and  likewise  that  similar  delay  rendered  the 
carrier  liable  for  damage  to  the  goods  by  freezing.  Michigan  Cent.  R. 
Co.  V.  Curtis,  80  111.  324.  The  Alabama  and  Kentucky  courts  have 
held  that  a  destruction  by  fire  within  a  valid  exception  in  the  bill  of 
lading  would  not  excuse  the  carrier  if  by  negligent  delay  in  transpor- 
tation the  goods  had  been  subjected  to  such  casualty.  Louisville  & 
N.  R.  Co.  V.  Gidley,  119  Ala.  523  (24  South.  753);  Hernsheim  v. 
Newport  News  &  M.  V.  Co.,  18  Ky.  Law  Rep.  227  (35  S.  W.  1115). 
In  Missouri  the  Supreme  Court  has  followed  or  approved  of  what  may 
be  designated  as  the  New  York  rule,  under  a  variety  of  circumstances. 
Davis  V.  AVabash,  St.  L.  &  P.  R.  Co.,  89  Mo.  340  (1  S.  W. 
327);  Pruitt  v.  Hannibal  &  St.  J.  R.  Co.,  62  Mo.  527;  Read  v. 
St.  Louis,  K.  C.  &  N.  R.  Co.,  60  Mo.  199.  And  the  St.  Louis 
Court  of  Appeals  in  that  State  has  applied  the  same  rule  in  case  of  a 
loss  by  freezing.  Armentrout  r.  St.  Louis,  K.  C.  &  N.  R.  Co.,  1  Mo. 
App.  158.  But  the  Kansas  City  Court  of  Appeals  in  a  case  of  loss  by 
flood  has  followed  the  Massachusetts  and  Pennsylvania  cases.  Moffatt 
Cora.  Co.  V.  Union  Pac.  R.  Co.  (Mo.  App.),  88  S.  W.  117.  And  the 
St.  Louis  Court  of  Appeals  seems  to  have  recently  recognized  the  same 
rule.  Grier  )\  St.  Louis  Merchants'  Bridge  Terminal  R.  Co.,  108  Mo. 
App.  565  (84  S.  W.  158).  In  West  Virginia  the  Supreme  Court  has 
held  that  negligent  delay  renders  the  carrier  liable  for  a  subsequent 
loss  by  freezhig.  McGraw  v.  Baltimore  &  O.  R.  Co.,  18  AV.  Va.  361 
(41  Am.  Rep.  696).  In  Minnesota  the  court  has  recently  reviewed 
the  whole  question  in  a  case  involving  the  loss  of  goods  by  the  same 
flood  which  caused  the  loss  for  which  the  present  suit  is  brought  and 
has  reached  the  conclusion  that  the  previous  negligent  delay  of  the 
carrier  which  caused  the  goods  to  be  subjected  to  the  peril  of  the  flood 
' '  concurred  and  mingled  with  the  act  of  God  "  to  such  an  extent  that 
the  carrier  was  precluded  from  relying  upon  the  act  of  God  as  a 
defence.  Bibb  Broom  Corn  Co.  r.  Atchinson,  T.  &  S.  F.  R.  Co., 
94  Minn.  269,  102  N.  W.  709  (69  L.  R.  A.  509). 

The  irreconcilable  conflict  in  the  authorities  is  recognized  by  text- 
writers,  and  while  the  weight  of  general  authority  has  in  many  cases 
been  said  to  support  the  rule  announced  in  the  Massachusetts  and 
Pennsylvania  cases  ( 1  Thompson,  Negligence,  section  74 ;  Schouler, 
Bailments  [Ed.  190.5],  section  348  ;  Hale,  Bailments  and  Carriers,  361 ; 
6  Cyc.  382;  notes  36  Am.  St.  Rep.  838),  other  authors  prefer  the 
New  York  rule  (Hutchinson,  Carriers  [2d  Ed.],  section  200 ;  Ray. 
Negligence  of  Imposed  Duties,  177).  In  the  absence  of  any  express 
declaration  of  this  court  on  the  very  point,  and  in  view  of  the  fact  that 
in  recent  cases  the  conflict  of  authority  is  still  recognized  (see  5  Cur. 
Law,  517)  it  seems  necessary  that  the  reasons  on  which  the  two  lines 
of  cases  are  supported  shall  be  considered  in  order  that  we  may  now 
reach  a  conclusion  which  shall  be  satisfactory  to  us. 

Mere  negligence  will  not  render  one  person  liable  to  another  for  a 


SECT.  IL]     green-wheeler   SHOE    CO.  V.  CHICAGO,  ETC.  RY.  CO.      175 

loss  which  the  latter  would  not  have  sustained  had  there  been  no  such 
negligence,  unless  the  negligence  consists  in  some  violation  of  a  duty 
which  the  one  person  owes  to  the  other.  Dubuque  Wood  &  Coal 
Ass'n  V.  City  and  County  of  Dubuque,  30  Iowa,  176;  St.  Louis,  I.  M. 
&  S.  R.  Co.  V.  Commercial  Ins.  Co.,  139  U.  8.  223  (11  Sup.  Ct.  554, 
35  L.  Ed.  154).  And,  on  the  other  hand,  it  is  well  settled  that  if  the 
negligence  of  one  person  with  reference  to  the  duty  owed  to  another 
concurs  with  an  accidental  cause  resulting  in  injury  to  another  to  whon: 
such  duty  is  owed  the  negligent  person  must  answer  for  the  conse- 
quences as  though  his  negligence  were  the  sole  cause  of  the  loss. 
Savannah,  F.  &  W.  K.  Co.  v.  Commercial  Guano  Co.,  103  Ga.  590 
(30  S.  E.  555);  Thomas  v.  Lancaster  Mills,  71  Fed.  481  (19  C.  C.  A. 
88) ;  New  Brunswick  vSteamboat  Co.  v.  Tiers,  24  N.  J.  Law,  697 
(64  Am.  Dec.  394) ;  Tierney  v.  New  York  Cent.  &  H.  R.  R.  Co.,  76 
N.  Y.  305;  Williams  v.  Grant,  1  Conn.  487  (7  Am.  Dec.  235);  1 
Thompson,  Negligence,  sections  68,  73. 

The  real  difficulty  seems  to  be  in  determining  to  what  extent,  if  at 
all,  it  is  necessary  that  the  negligent  party  must  have  been  able  to 
foresee  and  anticipate  the  result  of  his  negligent  act  in  order  to  render 
him  liable  for  the  consequences  thereof  resulting  from  a  concurrence 
of  his  negligence  and  another  cause  for  which  he  is  not  responsible. 
In  an  action  on  contract  the  party  who  is  at  fault  is  only  liable  for 
such  consequences  as  arise  according  to  the  usual  course  of  things 
from  his  breach,  or  such  as  may  reasonably  be  supposed  to  have  been 
in  the  contemplation  of  both  parties  at  the  time  the  contract  was  made 
as  the  probable  result  of  the  breach.  Hadley  v.  Baxendale,  9  Exch. 
341  ;  Sedgwick,  Elements  of  Damage,  17.  But  in  an  action  for  tort, 
and  the  present  action  is  of  that  character,  recovery  is  not  limited  to 
the  consequences  within  the  contemplation  of  the  parties  or  either  of 
them,  but  includes  all  the  consequences  ' '  resulting  by  ordinary 
natural  sequence,  whether  foreseen  by  the  wrongdoer  or  not,  provided 
that  the  operation  of  the  cause  of  action  is  not  interrupted  by  the 
intervention  of  an  independent  agent  or  overpowering  force,  and  that 
but  for  the  operation  of  the  cause  of  action  the  consequence  would  not 
have  ensued."  Sedgwick,  Elements  of  Damage,  section  54.  It  is 
true  that  for  the  purpose  of  determining  whether  the  injury  suffered  by 
the  part}'  complaining  was  the  natural  and  probable  result  of  the 
wrong  complained  of  a  convenient  test  is  to  consider  whether  in  gen- 
eral such  a  result  might  have  been  foreseen  as  the  consequence  of  the 
wrong,  but  it  is  not  necessary  ' '  that  the  injury  in  the  precise  form  in 
which  it  in  fact  resulted  should  have  been  foreseen.  It  is  enough  that 
it  now  appears  to  have  been  the  natural  and  probable  consequence." 
Hill  V.  Winsor,  118  Mass.  251  ;  Schumaker  /'.  St.  Paul  &  D.  R.  Co., 
46  Minn.  38  (48  N.  W.  559,  12  L.  R.  A.  257).  '  And  see  Railroad  Co. 
V.  Kellogg,  94  U.  S.  469  (24  L.  Ed.  256) ;  McPeek  v.  Western  Union 
Tel.  Co.,  107  Iowa,  356;  Hoag  v.  Railroad  Co.,  85  Pa.  293  (27  Am. 
Rep.   653)  ;  Empire  State  Cattle  Co.  v.  .Atchison,  T.  &  S.  F.  R-  Co. 


176     GREEN-WHEELER   SHOE  CO.  V.  CHICAGO,  ETC.,  RY.  CO.    [CHAP.  III. 

(C.  C),  135  Fed.  135  ;  Chicago,  St.  P.,  M.  &  O.  R.  Co.  v.  Elliott,  55 
Fed.  949  (5  C.  C.  A.  347,  20  L.  R.  A.  582)  ;  Miller  v.  St.  Louis,  1.  M. 
&  S.  R.  Co.,  90  Mo.  389  (2  S.  W.  439)  ;  Smith  r.  Railroad,  L.  R.  6 
C.  P.  21 ;   1  Thompson,  Negligence,  section  59. 

Now,  while  it  is  true  that  defendant  could  not  have  anticipated  this 
particular  flood  and  could  not  have  foreseen  that  its  negligent  delay  in 
transportation  would  subject  the  goods  to  such  a  danger,  yet  it  is  now 
apparent  that  such  delay  did  subject  the  goods  to  the  danger,  and  that 
but  for  the  delay  they  would  not  have  been  destroyed;  and  defendant 
should  have  foreseen,  as  any  reasonable  person  could  foresee,  that  the 
negligent  delay  would  extend  the  time  during  which  the  goods  would 
be  liable  in  the  hands  of  the  carrier  to  be  overtaken  by  some  such 
casualty,  and  would  therefore  increase  the  peril  that  the  goods  should 
be  thus  lost  to  the  shipper.  This  consideration  that  the  peril  of  acci- 
dental destruction  is  enhanced  by  the  negligent  extension  of  time  dur- 
ing which  the  goods  must  remain  in  the  carrier's  control  and  out  of  the 
control  of  the  owner,  and  during  which  some  casualty  may  overtake 
them,  has  not,  we  think,  been  given  sutlicieut  consideration  in  the  cases 
in  which  the  carrier  has  been  held  not  responsible  for  a  loss  for  which 
he  is  not  primarily  liable,  but  which  has  overtaken  the  goods  as  a  con- 
sequence of  the  preceding  delay  in  their  transportation. 

It  is  not  sufficient  for  the  carrier  to  say  by  way  of  excuse  that  while 
a  proper  and  diligent  transportation  of  the  goods  would  have  kept 
them  free  from  the  peril  by  which  they  were  in  fact  lost  it  might  have 
subjected  them  to  some  other  peril  just  as  great.  He  cannot  speculate 
on  mere  possibilities.  A  pertinent  illustration  is  furnished  by  the 
well-settled  rule  with  reference  to  deviation  which  is  that  if  the  carrier 
transports  the  goods  over  some  other  route  than  that  specified  in  the 
contract  or  reasonably  within  the  contemplation  of  the  parties,  he  must 
answer  for  any  loss  or  damage  occurring  during  such  deviation,  al- 
though it  is  from  a  cause  which  would  not  in  itself  render  him  liable. 
In  such  a  case  it  is  said  "  that  no  wrongdoer  can  be  allowed  to  appor- 
tion or  qualify  his  own  wrong,  and  that  as  a  loss  has  actually  happened 
whilst  his  wrongful  act  was  in  operation  and  force,  and  which  is  attrib- 
utable to  his  wrongful  act,  he  cannot  set  up  as  an  answer  to  the 
action  the  bare  possibility  of  a  loss  if  his  wrongful  act  had  never  been 
done.  It  miglit  admit  of  a  different  construction  if  he  could  show,  not 
only  that  the  same  loss  might  have  happened,  but  that  it  must  have 
happened  if  the  act  complained  of  had  not  been  done."  Davis  v. 
Garrett,  6  Bing.  716.  And  see  Merchants'  D.  Transp.  Co.  v.  Kahn, 
76  111.  520;  Crosby  v.  Fitch,  12  Conn.  410  (31  Am.  Dec.  745);  U.  S. 
Exp.  Co.  V.  Kountze,  8  Wall.  342  (19  L.  Ed.  457,  6  Cyc.  383).  It  is 
true  that  the  analogy  to  the  case  of  a  deviation  is  denied  by  the  courts 
'vhich  announce  the  rule  of  the  Pennsylvania  and  Massachusetts  cases 
but  the  distinction  attempted  to  be  made  that  a  deviation  amounts  to 
a  conversion  rendering  the  carrier  absolutely  liable  is  too  technical  to 
be  considered  as  persuasive.     The  analogy  between  the  two  classes  of 


SECT.  II.]      GREEN-WHEELER   SHOE   CO.  V.  CHICAGO,  ETC.,  RY.  CO.      177 

cases  has  been  recognized  in  Constable  v.  National  Steamship  Co., 
154  U.  S.  51  (14  Sup.  Ct.  1062,  38  L.  Ed.  903),  and  in  Hutchinson, 
Carriers  (2d  Ed.),  section  200. 

This  court  has  expressed  itself  in  favor  of  the  liability  of  the  carrier 
in  classes  of  cases  very  analogous  to  that  of  deviation.  Where  goods 
were  shipped  with  the  agreement  that  they  should  be  carried  to  their 
destination  without  change  of  cars,  and  in  violation  of  this  contract  the 
goods  were  unloaded  at  Chicago  which  was  not  their  destination,  for 
the  purpose  of  transporting  them  in  other  cars,  and  they  were  destroyed 
by  the  Chicago  fire,  it  was  held  that  the  carriers  were  liable  although 
the  loss  by  fire  was  within  a  valid  exemption  from  liability  contained 
in  the  bill  of  lading.  Robinson  v.  Merchants'  Dispatch  Trans.  Co., 
45  Iowa,  470;  Stewarts.  Merchants'  Dispatch  Trans.  Co.,  47  Iowa, 
229.  Certainly  the  act  of  the  carrier  in  unloading  the  goods  at  Chicago, 
instead  of  carrying  them  through  to  their  destination  in  the  cars  in 
which  they  were  originally  loaded,  would  not  amount  even  to  a  techni- 
cal conversion,  nor  could  it  have  been  anticipated  that  the  result  of 
such  an  act  would  be  the  destruction  of  the  goods  ;  nevertheless  this 
court  reached  the  conclusion  that  such  a  departure  from  the  terms  of 
the  contract  rendered  the  carrier  liable  for  a  loss  for  which  it  would 
not  have  been  liable  had  it  resulted  without  such  departure.  TVe  think 
that  in  principle  these  cases  support  the  general  proposition  that  the 
wrongful  act  of  the  carrier  which  in  fact  subjects  the  goods  to  loss 
renders  him  liable  for  such  loss  although  the  circumstances  under 
which  it  occurred  could  not  have  been  anticipated.  This  is  plainly 
right,  for  the  detention  due  to  the  transfer  of  the  goods  to  the  other 
cars  did  increase  the  hazard  of  fire;  but  it  is  equally  true  in  the  case 
before  us  that  the  negligent  delay  increa.sed  the  hazard  of  the  loss  by 
flood.  As  supporting  the  same  view  we  may  also  refer  to  Hewett  v. 
Chicago,  B.  &  Q.  R.  Co.,  63  Iowa,  611,  in  which  it  was  held  that 
negligent  delay  in  forwarding  goods  which  were  liable  to  damage  by 
freezing  rendered  the  carrier  accountable  for  the  loss  thus  resulting. 
In  that  case  it  is  said  that  while  the  carrier  is  responsible  for  such 
damages  only  as  are  the  proximate  consequence  of  his  own  acts  and 
is  not  accountable  for  such  loss  as  is  occasioned  by  the  intervention 
of  the  vis  major ^  yet  "  one  of  the  undertakings  of  the  common  carrier 
is  that  he  will  not  expose  the  property  entrusted  to  his  care  to  any 
improper  hazards  or  extraordinary  perils,  and  if,  by  his  act  or  omis- 
sion, it  is  exposed  to  perils  or  hazards  which  ordinary  foresight  could 
have  apprehended  and  provided  against,  he  is  accountable  for  such 
injury  as  may  be  occasioned  by  such  exposure."  See,  also,  Whicher 
V.  Steam  Boat  Ewing,  21  Iowa,  240. 

We  are  satisfied  that  the  sounder  reasons,  supported  by  good  au- 
thority, require  us  to  hold  that  in  this  case  the  carrier  is  liable  for  the 
loss  of  and  damage  to  plaintiff's  goods,  and  the  judgment  of  the  trial 
court  is  therefore  reversed. 


178  CHEEVES    V.    DANIELLY.  [CHAP.  III. 


CHEEVES  V.   DANIELLY. 

Supreme  Court  of  Georgia,  1887. 

[Reported  80  Ga.  114.] 

Blandford,  J.  Danielly  brought  his  action  against  Cheeves  to 
recover  damages,  for  and  on  account  of  Cheeves'  having  turned  a  por- 
tion of  a  stream  of  water  known  as  Yellow  creek  from  its  natural  flow, 
by  digging  a  ditch  from  a  point  just  opposite  his  (Cheeves')  land 
on  Yellow  creek,  to  a  point  on  Tobesofkee  or  Big  creek,  just  opposite 
the  plaintiff's  land,  thereby  emptying  the  waters  of  Yellow  creek  into 
Tobesofkee  or  Big  creek,  and  causing  the  latter  to  fill  up  with  sand,  or 
other  obstructions,  and  raising  the  water  of  the  creek  so  that  the  lands 
of  the  plaintiff  were  overflowed,  causing  him  great  injury  and  damage. 
The  jury  found  a  verdict  in  favor  of  the  plaintiff  in  the  court  below. 
Cheeves  moved  for  a  new  trial  on  several  grounds;  the  motion  was 
overruled,  and  Cheeves  excepted. 

1.  The  main  ground  of  error  assigned  in  the  motion  for  a  new  trial, 
and  the  one  which  was  chiefly  relied  on  before  us,  was  that  the  court 
refused  to  give  in  charge  section  3072  of  the  code,  which  section  is  as 
follows:  "If  the  damages  are  only  the  imaginary  or  possible  result  of 
the  tortious  act,  or  other  and  contingent  circumstances  preponderate 
largely  in  causing  the  injurious  effect,  such  damages  are  too  remote  to 
be  the  basis  of  recovery  against  the  wrong-doer."  The  principles  of 
law  announced  in  this  section  of  the  code  are  very  difficult  of  applica- 
tion to  any  particular  case  or  given  state  of  facts;  and  upon  the  ques- 
tion of  their  application  judges  of  the  same  court  and  of  the  highest 
courts  of  this  country  have  differed.  To  understand  this  section  we 
think  it  is  necessary  that  it  should  be  construed  together  with  other 
sections  of  the  code  immediately  connected  therewith.  Sections  3071 
and  3073  are  as  follows:  "'Direct'  damages  are  such  as  follow  imme- 
diately upon  the  act  done.  '  Consequential '  damages  are  such  as  are 
the  necessary  and  connected  effect  of  the  tortious  act,  though  to  some 
extent  depending  upon  other  circumstances."  "  Damages  which  are  the 
legal  and  natural  result  of  the  act  done,  though  contingent  to  some 
extent,  are  not  too  remote  to  be  recovered.  But  damages  traceable 
to  the  act,  but  not  its  legal  or  material  consequences,  are  too  remote  and 
contingent."  If  the  act  complained  of,  though  it  might  in  some  degree 
contribute  to  the  injury,  is  so  small  or  of  such  character  as  would  not 
of  itself  produce  the  injury,  and  is  of  itself  an  innocent  act,  and  there 
are  other  and  contingent  circumstances  which  greatly  proponderate 
in  producing  the  injury,  then  the  damages  cannot  be, recovered.  The 
throwing  of  a  grain  of  sand  into  a  creek  would,  to  some  extent,  cause 
the  -creek  to  dam  up,  but  it  would  not  be  appreciable;  other  and  con- 


I 


SECT.  II.]  CHEEVES   V.    DANIELLY.  179 

tingent  circumstances  would  be  so  great  as  to  make  whatever  damage 
that  small  act  might  do  merel^^  imaginary  or  possible.  If  the  act 
complained  of  produces  directly  the  damage,  however  small  that 
damage  might  be,  then  it  can  be  the  subject  of  recovery;  for  wherever 
there  is  a  wrong  there  shall  be  a  remedy.  If  the  injury  is  produced 
from  the  act  complained  of,  and  can  be  traced  to  it  directly,  imme- 
diately, reasonably  and  probably,  then  a  recovery  can  be  had. 

In  this  case,  it  appears  from  the  evidence  that  Yellow  creek  was 
turned  into  Tobesofkee  or  Big  creek  opposite  to  Danielly's  land  by 
Cheeves;  that  it  had  never  flowed  into  it  at  that  place  before,  but 
that  a  portion  of  it  flowed  into  it  a  mile  or  more  below  there;  that 
shortly  after  this  creek  was  turned  in  at  the  point  opposite  Danielly's 
land,  the  creek  commenced  filling  up  with  sand,  and  overflowed  his 
land;  that  it  had  never  done  so  before;  that  Danielly's  land  thus  be- 
came wet,  and  he  was  in  consequence  unable  to  make  any  crops  upon 
it  and  thereby  suffered  damage.  On  the  other  side  it  was  contended 
that  beavers  had  got  to  working  there,  and  that  a  mill-dam  had  broken 
above  that  point,  which  caused  mud  and  sand  to  flow  in,  and  that  from 
the  clearing  of  the  lands  opposite  to  Danielly's,  sand  had  flowed  in  and 
filled  up  the  creek.  It  may  have  been  true  that  there  were  concurrent 
causes  for  the  overflow  of  this  creek;  that  the  beavers  dammed  it  up 
to  some  extent,  and  that  the  flowing  in  of  the  sand  from  adjacent  land, 
and  the  breaking  of  the  mill-dam  above  contributed  in  some  degree 
to  the  injury;  but  the  question  was  fairly  submitted  by  the  court 
to  the  jury,  and  the  court  left  jt  with  them  to  say  whether  the  injury 
complained  of  was  or  was  not  traceable  to  the  act  of  Cheeves, — 
whether  his  act  reasonably  and  probably  produced  the  injury  or 
not;  and  the  court  further  instructed  them  that  if  the  damage  was 
caused  by  the  beavers,  or  the  washing  away  of  the  dam  above,  or  the 
flowing  in  of  sand  fron  adjacent  land,  there  could  be  no  recovery  by 
the  plaintiff;  but  that  if  the  act  of  the  defendant  caused  the  injury  or 
any  part  of  it, —  if  the  injury  was  consequential  upon  it  so  that  it 
could  be  traced  to  the  act  complained  of,  then  the  defendant  was 
liable  for  any  damage  caused  thereby.  We  think  this  is  the  law  of 
the  case;  and  we  think  that  the  court,  under  the  facts  of  this  case, 
did  right  to  refuse  to  give  in  charge  to  the  jury  section  3072  of  the 
code  without  more;  because  it  is  very  manifest  to  our  minds,  from  the 
evidence  in  the  record,  that  the  turning  of  Yellow  creek  into  Tobe- 
sofkee or  Big  creek  at  a  point  opposite  the  lands  of  Danielly,  caused 
some  of  this  injury, —  that  the  injury  is  directly  traceable  to  a  portion 
of  it  at  least. 

2.  Again,  if  this  act  of  Cheeves  in  turning  Yellow  creek  into  Tobesof- 
kee creek  put  other  causes  in  operation,  if  it  started  the  beavers  to 
work  damming  up  the  creek,  Cheeves  would  be  liable  for  the  damage 
thereby  resulting.  Where  a  UTongful  act  puts  other  forces  in  opera- 
tion, which  are  natural  and  which  the  act  would  reasonably  and  prob- 


180     E.  T.  &  H.  K.  IDE   V.  BOSTON   &   MAINE   RAILKOAD    CO.    [CHAP.  III. 

ably  put  in  motion,  the  party  guilty  of  the  first  efficient  cause  will 
be  responsible  in  damages  for  the  injury  proved.  So,  if  a  man  sets  a 
house  on  fire,  it  is  natural  and  reasonable  that  air  will  carry  the  flames 
to  an  adjacent  house,  and  from  house  to  house;  and  the  person  who 
wrongfully  or  negligently  sets  the  house  on  fire  is  responsible  for  all 
that  naturally,  reasonably  and  legally,  follows  from  his  WTongful  act, 
and  can  be  traced  thereto.  If  he  puts  natural  forces  in  operation 
which  produce  injury  to  another,  and  which  would  not  have  been 
put  in  operation  but  by  his  wrongful  act,  he  is  responsible  for  it,  and 
ought  to  be  made  liable  for  it.^ 

Judgment  affirmed. 


E.  T.  &  H.  K.  IDE  V.  BOSTON  &  MAINE  RAILROAD  CO. 

Supreme  Court  of  Vermont,  1909. 

[Reported  83  Vt.  66.] 

Haselton,  J.  This  was  an  action  brought  by  the  plaintiff,  a  cor- 
poration, to  recover  damages  for  the  destruction  by  fire  of  a  grist  mill 
and  outbuildings  and  of  grain  stored  therein.  Trial  by  jury  was  had. 
Verdict  and  judgment  were  for  the  plaintiff.  The  fire  in  question,  which 
occurred  May  12,  1905,  was  alleged  to  have  been  communicated 
by  a  locomotive  engine  on  the  Connecticut  &  Passumpsic  Rivers  Rail- 
road, which,  on  the  date  named,  was  operated  by  the  defendant  as 
lessee.^  .  .  .  The  fire  was  first  seen  on  the  roof  of  an  old  blacksmith 
shop  owned  by  the  plaintiff  standing  on  the  easterly  side  of  the  railroad 
track  and,  to  abo\it  one-third  of  its  extent,  on  the  right  of  way  of  the 
railroad.  .  .  .  After  this  fire  was  so  far  overcome  that,  as  some  of  the 
e\adence  tended  to  show,  it  was  thought  to  have  been  put  out,  it  started 
up  again,  and  the  wind,  which  had  been  blowing  towards  the  east, 
changed  its  course  and  blew  strongly  towards  the  west,  carrying  fire 
to  a  shed  on  the  west  side  of  the  track,  and  thence  to  a  stockhouse  and 
factory  of  the  Cushman  &  Rankin  Company,  and  thence  to  the  grist 
mill  and  outbuildings  of  the  plaintiff  above  referred  to.  The  plain- 
tiff's e\adence  tended  to  show  that  the  fire  on  the  roof  of  the  black- 
smith shop  was  communicated  to  it  from  one  of  the  defendant's  loco- 
motives, and,  all  questions  of  negligence  on  the  part  of  both  parties 
and  of  intervening  causes  being  for  the  time  left  out  of  consideration, 
the  entire  conflagration  stands  as  an  integral  effect  of  the  cause  which 

^  The  remainder  of  the  opinion  is  omitted.  See  also  Elder  v.  Lykens  Valley 
Coal  Co.,  1.57  Pa.  490,  27  Atl.  545;  Howe  v.  West  Seattle  L.  &  I.  Co.,  21  Wash. 
594,  59  Pac.  495.  —  Ed. 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  II.]      E.  T.  &  H.  K.  IDE   V.  BOSTON   &   MAINE    KAILROAD    CO.      181 

started  the  fire  on  the  roof  of  the  blacksmith  shop.  Isham  v.  Dow's 
Estate,  70  Vt.  588,  41  Atl.  585,  45  L.  R.  A.  87,  67  Am.  St.  Rep.  691. 
The  defendant  quotes  from  Ryan  i\  New  York  Central  R.  R.  Co.,35  N.Y. 
210,  91  Am.  Dec.  49,  and  also  cites  Pennsylvania  R.  R.  Co.  t.  Kerr,  62 
Pa.  353,  1  Am.  Rep.  431.  These  cases,  however,  are  pretty  generally 
discredited.  See  with  regard  to  them  Milwaukee,  etc.,  Ry.  Co.  v. 
Kellogg,  94  U.  S.  469,  474,  24  L.  Ed.  256,  and  what  is  said  of  them  in 
Isham  V.  Dow's  Estate,  70  Vt.  588,  41  Atl.  585,  45  L.  R.  A.  87,  67  Am. 
St.  Rep.  691.  As  appears  from  the  Isham  Case,  these  cases  are  not 
followed  here.  We  do  not  understand,  considering  the  argument  of  the 
defendant  as  a  whole,  that  the  doctrine  of  these  cases  is  relied  on. 
The  defendant's  real  claim  in  this  regard,  as  appears  from  the  brief 
in  its  behalf,  is  that  there  were  intervening  causes  in  \'iew  of  which  the 
fire  which  started  the  blaze  on  the  blacksmith  shop  cannot  be  regarded 
as  the  proximate  cause  of  the  loss  for  which  recovery  is  sought.  The 
claim  is  that  there  were  two  intervening  causes:  One,  the  conduct  of 
the  plaintiff  in  its  doings,  and  omissions  in  respect  to  the  blacksmith 
shop  after  the  fire  had  been  practically  subdued;  and  the  other  the 
change  of  the  wind  and  the  increase  in  its  velocity.  The  sudden  change 
in  the  force  and  direction  of  the  wind  cannot  be  regarded  as  an  inter- 
vening agency.  On  the  question  of  whether  or  not  one's  conduct  in 
setting  a  fire  is  or  is  not  negligent,  the  condition  of  the  ground  and 
premises,  as  to  dryness  or  wetness,  the  time  of  starting  the  fire,  whether 
in  the  evening  or  morning,  the  condition  of  the  air,  whether  still  or 
windy,  and,  if  there  is  a  wind,  the  direction  in  which  it  is  blowing,  may 
sometimes  be  proper  matters  for  consideration.  But  when  negligence 
in  setting  out  a  fire  is  established,  as  in  the  discussion  of  this  point 
we  are  to  assume  it  to  have  been  here,  changes  in  the  direction  and 
force  of  the  wind  and  in  other  conditions  may  carry  the  result  of  the 
negligence  further  than  it  would  otherwise  have  gone,  and  yet  liability 
attach  for  the  consequent  injuries,  although  entirely  unforeseen. 
The  distinction  is  clearly  made  in  Isham  v.  Dow's  Estate,  70  Vt.  588, 
591,  41  Atl.  585,  586,  45  L.  R.  A.  87,  67  Am.  St.  Rep.  691.  It  is  there 
said:  "On  the  question  of  what  is  negligence,  it  is  material  to  con- 
sider what  a  prudent  man  might  reasonably  anticipate;  but,  when  neg- 
ligence is  once  established,  that  consideration  is  entirely  immaterial 
on  the  question  of  how  far  that  negligence  imposes  liability."  Gilson 
V.  Canal  Co.,  65  Vt.  213,  26  Atl.  70,  36  Am.  St.  Rep.  802,  is  to  the 
same  effect.  So  is  Stevens  v.  Dudley,  56  Vt.  158.  Among  the  cases 
cited  in  Gilson  v.  Canal  Co.,  65  Vt.  213,  26  Atl.  70,  36  Am.  St.  Rep. 
802,  is  the  case  of  Smith  v.  London  &  Southwestern  Ry.  Co.,  L.  R. 
6  C.  P.  14.  That  was  a  case  of  fire  communicated  from  a  locomotive 
engine.  The  fire  broke  out  between  the  rails  and  a  hedge,  from  thence 
spread  to  a  stubble-field  beyond,  and  from  the  stubble-field  was  carried 
by  a  high  wind  over  a  road  to  the  plaintiff's  cottage,  which  was  burned. 
The  cottage  was  two  hundred  yards  from  the  place  where  the  fire  started. 


182   TEXAS  &  NEW  ORLEANS  RAILROAD  CO.  V.   BELLAR.   [CHAP.  III. 

Notwithstanding  a  concurrence  of  circumstances  which,  as  the  court  rec- 
ognized, no  one  could  have  been  expected  to  foresee,  the  court  held 
that,  since  the  fire  was  negligently  set,  the  railway  company  was  liable 
since,  after  all,  the  injury  proceeded  from  the  original  fire  through 
the  operation  of  natural  causes.  Doubtless  such  an  extraordinary 
phenomenon  in  nature  as  in  legal  acceptation  is  an  act  of  God  would 
be  an  intervening  cause.  Stevens  v.  Dudley,  56  Vt.  158,  167.  But  in 
this  latitude  we  know  no  winds  which  can  be  counted  on  to  blow  for 
any  length  of  time  with  a  force  and  direction  practically  unvaried 
except  for  some  extraordinary  violence  of  nature.  Such  winds  as  we 
ordinarily  know,  such  winds  as  the  evidence  here  relates  to,  are  not 
intervening  agents.  Milwaukee,  etc.,  Ry.  Co.  v.  Kellogg,  94  U.  S.  469, 
24  L.  Ed.  256;  Chicago,  etc.,  R.  Co.  i\  Lesh,  158  Ind.  423,  63  N.  E. 
794;  Union  Pacific  Ry.  Co.  v.  McCollum,  2  Kan.  App.  319,  43  Pac.  97; 
Chicago,  etc.,  R.  Co.  v.  WiUiams,  131  Ind.  30,  30  N.  E.  696;  Perley  v. 
Eastern  R.  Co.,  98  Mass.  414,  96  Am.  Dec.  645;  Florida,  etc.,  Ry 
Co.  V.  Welch,  53  Fla.  145,  44  So.  250.^ 


TEXAS  &  NEW  ORLEANS  RAILROAD  CO.  v.   BELLAR. 

Court  of  Civil  Appeals,  Texas,  1908. 
[Reported  51   Tex.  Civ.  App.  154.] 

McMeans,  J.  This  was  a  suit  brought  by  the  appellees,  L.  A.  Bellar 
and  wife,  against  the  appellant,  Texas  &  New  Orleans  Railroad  Com- 
pany, for  damages  resulting  to  them  from  the  loss  by  fire  of  two  houses 
in  Beaumont. 

Appellees  alleged  that  appellant  negligently  permitted  oil  to  escape 
from  an  oil  tank  on  its  premises  and  from  tank  cars  on  its  switches, 
and  that  the  oil  so  escaping  saturated  the  ground  upon  which  their 
houses  were  situated,  as  well  as  all  that  intervening  between  the  tank, 
switches,  and  plaintiffs'  premises,  rendering  the  same  highly  inflam- 
mable, extrahazardous  as  regarded  the  danger  of  being  set  on  fire,  and 
that  such  condition  greatly  increased  the  danger  of  fire,  and  was  the 
proximate  cause  of  the  fire  which  destroyed  their  houses.  They  also 
alleged  the  destruction  of  the  houses  by  fire,  which  fire,  they  alleged, 
started  in  the  nighttime,  and  was  "carelessly  and  negligently  set 
by  defendant,  its  agents  and  servants,  in  operating  its  engines  and 
cars  adjacent  to  plaintiffs'  premises,  by  fire  escaping  therefrom,  or 
by  said  employees  in  some  other  manner,  or  by  its  employees,  otherwise 
engaged  in  its  behalf  thereabout,  or  by  some  other  person  or  agency, 

^  See  also  Higgins  v.  Dewey,  107  Mass.  494;  Needham  v.  King,  95  Mich.  303, 
54  N.  W.  891.  — Ed. 


SECT.  II.]      TEXAS    &   NEW   ORLEANS   RAILROAD    CO.  V.  BELLAR,  183 

plaintiffs  being  unable  to  point  out  with  any  greater  certainty  the 
origin  or  cause  of  the  fire,  but  allege  that  same  would  not  have  been 
set  out  and  plaintiffs'  property  destroyed  but  for  the  highly  inflam- 
mable and  extrahazardous  condition  in  which  plaintiffs'  premises  were 
placed  by  the  escape  of  oil  as  aforesaid."  ^  .  .  . 

By  its  first  proposition  under  the  assignments  appellant  contends 
that  the  escape  of  the  oil  was  not  shown  to  have  been  the  proximate 
cause  of  the  fire  and  the  consequent  destruction  of  plaintiff's'  property, 
but  that  the  proximate  cause  of  the  loss  was  the  communication  of  the 
fire  to  the  oil,  and  inasmuch  as  the  origin  of  the  fire  was  not  shown 
the  defendant  cannot  be  held  liable. 

The  finding  of  the  jury  that  the  negligence  of  the  defendant  in 
permitting  the  oil  to  escape,  thereby  causing  the  ground  to  become  so 
saturated  with  oil  as  to  create  the  danger  of  setting  fire  to  plaintiffs' 
property,  was  the  proximate  cause  of  the  destruction  of  the  property, 
is  sustained  by  the  evidence.  The  fact  that  the  fire  might  have  started 
from  some  cause  other  than  through  an  act  of  the  railroad  company 
does  not  exculpate  the  defendant.  It  may  be  that  the  defendant  was 
in  no  wise  responsible  for  the  origin  of  the  fire,  and  the  e\adence  does 
not  show  that  it  was;  but  it  was  responsible  for  the  part  its  negligence 
performed.  That  negligence  consisted  in  bringing  about  a  condition 
which  subjected  the  plaintiffs'  property  to  a  danger,  which  resulted 
in  its  destruction,  which  did  not  theretofore  exist,  and  which  danger 
and  result  was  reasonably  apparent  to  and  should  have  been  foreseen 
by  a  person  of  ordinary  prudence.  It  is  true  that  the  oil  of  itself 
did  not  create  the  danger,  and  that  the  danger  therefore  did  not  arise 
until  some  other  act  was  performed,  namely,  the  kindling  of  the  fire 
which  ignited  the  oil.  Neither  would  the  kindling  of  the  fire  at  a  point 
near  or  remote  from  the  property  have  created  the  danger  but  for  the 
presence  of  the  oil.  It  is  not  always  the  last  act  of  cause  or  nearest 
act  to  the  injury  that  is  the  proximate  cause,  but  such  act,  wanting 
in  ordinary  care,  as  actively  aided  in  producing  the  injury  as  a  direct 
and  existing  cause.  It  need  not  be  the  sole  cause,  but  it  must  be  a 
concurring  cause,  such  as  might  reasonably  have  been  contemplated 
as  invohang  the  result  under  the  attending  circumstances.  Gonzales 
V.  Galveston,  84  Tex.  7;  Gulf,  C.  &  S.  F.  Ry.  r.  Rowland,  90  Tex.  370; 
New  York  T.  &  M.  Ry.  v.  Green,  36  S.  W.  813;  Galveston  v.  Pos- 
nainsky,  62  Tex.  134;  Mexican  Nat.  Ry.  v.  Mussette,  86  Tex.  719; 
Scale  V.  Gulf,  C.  &  S.  F.  Ry,  65  Tex.  277. 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


184      SNEESBY  V.  LANCASHIRE  &  YORKSHIRE  RAILWAY  CO.     [CHAP.  IIL 

SECTION   III. 
Interposition  of  the  Act  of  an  Animal. 

SNEESBY  V.  LANCASHIRE  &  YORKSHIRE  RAILWAY  CO. 

Court  of  Queen's  Bench,  1874. 

[Reported,  L.  R.  9  Q.  B.  263.] 

Blackburn,  J.  I  am  of  opinion  that  the  rule  must  be  made  ab- 
solute. The  facts  seem  to  be  that,  by  what  is  admitted  to  have  been 
neghgence  on  the  part  of  the  servants  of  the  company,  the  cattle  of  the 
plaintiff,  as  they  were  crossing  the  railway  on  the  level,  were  frightened 
and  scattered,  so  that  for  a  time  the  plaintiff's  drovers  lost  control  of 
all  of  them;  they  recovered  the  chief  part  of  the  cattle,  but  some  were 
found  killed  on  another  railway.  It  happens  that  this  was  also  the  de- 
fendants' railway;  and  it  appears  that  the  cattle  got  on  to  the  railway 
through  a  defect  in  the  fence  of  a  garden  or  orchard  belonging  to  the 
defendants;  but  from  the  nature  of  the  accident  it  seems  to  me  that 
we  may  treat  the  case  as  if  it  had  been  the  railway  of  some  other  com- 
pany, or  as  if  the  cattle  had  fallen  down  an  unguarded  quarry.  The 
question  is,  are  the  defendants,  whose  negligence  drove  the  cattle  out 
of  the  custody  of  the  plaintiff,  liable  for  their  death,  or  is  the  damage 
too  remote?  No  doubt  the  rule  of  our  law  is  that  the  immediate 
cause,  the  causa  proxima,  and  not  the  remote  cause,  is  to  be  looked 
at:  for,  as  Lord  Bacon  says:  "It  were  infinite  for  the  law  to  judge  the 
causes  of  causes  and  their  impulsions  one  of  another;  therefore  it  con- 
tenteth  itself  with  the  immediate  cause,  and  judgeth  of  acts  by  that, 
without  looking  to  any  further  degree."  The  rule  is  sometimes 
difficult  to  apply,  but  in  a  case  like  the  present  this  much  is  clear, 
that  so  long  as  the  want  of  control  over  the  cattle  remains  without 
any  fault  of  the  owner,  the  causa  proxima  is  that  which  caused  the 
escape,  for  the  consequences  of  which  he  who  caused  it  is  responsible. 
Suppose,  for  instance,  in  former  times  a  reclaimed  falcon  were  fright- 
ened and  escaped,  the  natural  consequence  would  be  that  it  would  be 
lost  altogether,  and  the  person  who  negligently  frightened  it  would  be 
liable.  The  natural  and  proximate  consequence  was  that  it  would  not 
be  got  back  at  all.  So,  if  you  have  lost  control  of  cattle  and  cannot 
get  them  back  under  your  control  till  they  have  run  into  danger  and  are 
killed,  the  death  is  a  natural  consequence  of  the  negligence  which  caused 
you  to  lose  control  of  them.  It  is  the  most  natural  consequence  of 
cattle  being  frightened  that  they  shoiild  go  galloping  about  and  get 
into  a  dangerous  position,  and,  being  in  the  neighborhood  of  railways. 


SECT.  III.]     SNEESBY  V.  LANCASHIRE  &  YORKSHIRE  RAILWAY  CO.      185 

should  get  on  the  line  and  be  run  over  by  a  passing  train,  whether  that 
of  the  defendants  or  not  is  immaterial.  When  once  it  is  established 
that  the  cattle  were  driven  out  of  the  control  of  the  plaintiff  by  the 
defendants'  negligence  and  that  the  control  could  not  be  recovered  till 
they  were  killed,  which  was  the  natural  consequence  of  their  being 
uncontrolled,  the  liability  of  the  defendants  is  beyond  dispute.  Law- 
rence V.  Jenkins  seems  directly  in  point ;  the  other  cases  when  looked 
into  do  not  go  quite  so  far;  but  on  principle  there  can  be  no  doubt  that 
the  defendants  are  liable. 

QuAiN,  J.  It  is  well  established  that  a  person  is  liable  for  all  the 
consequences  of  his  wrongful  act:  of  which  the  well-known  case  of 
Scott  I".  Shepherd,  2  W.  Bl.  892,  is  an  instance  ;  where  a  squib,  hav- 
ing been  thrown  in  a  crowd,  and  having  been  hastily  thrown  away 
by  two  other  persons,  and  ultimately  injured  the  plaintiff,  the 
wrong-doer,  the  original  thrower,  was  held  liable.  So,  where  the 
plaintiff's  cattle  got  through  a  defective  hedge  which  the  defend- 
ant was  bound  to  keep  in  repair,  and  were  killed,  in  one  case  by 
falling  into  a  pit,  and  in  another  by  the  falling  of  a  haystack  upon 
them,  the  defendant  was  held  liable.  Here  the  defendants'  porters, 
who  were  responsible  for  the  proper  management  of  the  sidings 
and  level  crossing,  are  the  persons  doing  the  illegal  act,  the  con- 
sequence of  which  was  the  escape  and  death  of  the  cattle.  In  a 
case  of  contract  the  question  is  very  different.  In  tort  the  defendant 
is  liable  for  all  the  consequences  of  his  illegal  act  where  they  are  not 
so  remote  as  to  have  no  direct  connection  with  the  act,  as  by  the  lapse 
of  time,  for  instance.  Applying  that  to  the  present  case,  I  think 
the  damage  to  the  cattle  was  not  so  remote  from  the  injurious  act  as 
not  to  be  the  natural  consequence  of  the  act.  The  injurious  act  was 
the  negligence  of  the  defendants'  servants  in  allowing  trucks  to  be 
suddenly  shunted  across  a  level  crossing  at  eleven  o'clock  at  night 
without  any  warning,  so  that  the  plaintiff's  cattle  were  frightened. 
The  place  was  very  dangerous  from  the  numerous  branch  railways, 
and  they,  having  escaped  from  the  plaintiff's  control,  got  on  to  one  of 
the  railways  and  were  killed  on  the  same  night.  These  circumstances, 
I  think,  bring  the  case  within  the  rule;  and  the  death  of  the  cattle  was 
not  so  remote  from  the  negligence  of  the  defendants  as  to  render  the 
damages  not  recoverable. 

Archibald,  J.  When  the  facts  are  understood,  there  can  be  no 
doubt  as  to  the  application  of  the  rule  tliat  a  wrong-doer  is  liable  for 
all  the  consequences  of  his  wrongful  act.  The  defendants'  servants 
had  been  guilty  of  a  wrongful  act,  and  the  important  fact  (which,  it 
appears,  at  the  trial  was  conceded)  is  that,  although  all  was  done  that 
could  be  done,  it  was  impossible  for  the  drovers  to  regain  control  of 
some  of  the  cattle  before  they  were  killed.     The  natural  consequence 


186  GILMAX   V.   ^'OYES.  [CHAP.  III. 

of  the  cattle  being  frightened  was  that  they  should  stray,  and,  so 
straying  in  the  neighborhood  of  a  railway,  should  get  on  to  it,  and  so, 
lying  down  or  remaining  on  it,  should  be  run  over  by  a  passing  train. 
Therefore  all  is  referable,  as  the  proximate  cause,  to  the  original  negli- 
gence of  the  defendants'  servants. 

Rule  absolute. 


GILMAN  V.   NOYES. 
Superior  Court  of  Judicature  of  New  Hampshire,  1876. 

[Reported  57  A'.  H.  627.] 

Case,  for  carelessly  leaving  the  plaintiff's  bars  down,  whereby  his 
cattle  and  sheep  escaped,  and  he  was  compelled  to  expend,  and  did 
expend,  time  and  money  in  hunting  for  the  same,  and  his  sheep  were 
wholly  lost. 

The  e\'idence  tended  to  show  that  the  defendant,  in  looking  after 
his  own  cattle,  left  the  plaintiff's  bars  down,  and  that  his  cattle,  and 
three  sheep  belonging  to  one  Marshall,  and  which  the  plaintiff  was 
pasturing,  were  wholly  lost.  The  defendant  denied  that  said  cattle  and 
sheep  escaped  through  the  bars,  and  introduced  evidence  tending  to 
show  that  they  escaped  through  other  fence  of  the  plaintiff,  and  with- 
out fault  on  the  part  of  the  defendant.  As  tending  to  show  that  the 
defendant  was  liable,  the  plaintiff,  without  objection,  testified  that  he 
called  on  the  defendant,  soon  after  he  ascertained  that  his  cattle  and 
sheep  had  escaped,  and  claimed  that  they  had  escaped  through  his 
fault  and  requested  him  to  go  and  look  them  up;  to  which  the  defend- 
ant replied,  that  he  could  not  then  go,  but  that  the  plaintiff  must  look 
them  up  himself,  and  he  would  pay  him  what  was  right  for  the  damage 
and  for  his  trouble.  The  defendant  did  not  admit  that  he  made  these 
statements,  as  testified  to  by  the  plaintiff,  and  claimed  that  whatever 
he  did  say  was  under  a  misapprehension.  The  e\'idence  tended  to 
show  that  the  sheep  were  destroyed  by  bears  after  they  had  escaped 
from  the  plaintiff's  pasture.  The  defendant  claimed  that  the  damages 
were  too  remote,  and  that  they  were  not  the  natural  consequences  of 
the  alleged  careless  acts  of  the  defendant.  The  defendant  requested 
the  following  instructions: 

1.  If  the  jury  find  to  be  true  the  statement  of  the  plaintiff,  that,  when 
he  went  and  first  called  on  the  defendant,  the  defendant  told  him  that 
he  was  in  for  the  damage,  and  he  wanted  him,  the  plaintiff,  to  hunt  up 
the  cattle,  and  he  would  pay  the  plaintiff  what  was  right  for  the  dam- 
age, and  that  the  plaintiff  assented  to  this,  he  cannot  recover  in  this 
form  of  action. 


SECT.  III.]  GILMAN    V.    NOYP:S.  187 

2.  That  if  the  jury  find  that  the  plaintiff  and  the  defendant  agreed 
that  the  plaintiff  should  hunt  up  the  cattle,  and  that  the  defendant 
should  pay  him  what  was  riglit  for  the  damages,  this  action  cannot  be 
maintained. 

3.  If  the  jury  find  that  it  was  agreed  by  the  parties  that  the  plaintiff 
was  to  hunt  up  the  cattle,  and  the  defendant  was  to  pay  the  plaintiff 
the  expense  and  trouble  of  hunting,  the  plaintiff  cannot  recover  for 
such  trouble  and  expense  so  incurred  at  the  request  of  the  defendant  in 
this  form  of  action.    His  remedy  would  be  assumpsit. 

4.  That,  the  sheep  being  the  property  of  Marshall,  the  plaintiff  can- 
not in  this  action  recover  the  value  of  the  same. 

5.  That  if  the  jury  find  that  the  sheep  were  killed  by  bears  after 
their  escape  from  the  pasture,  the  plaintiff  cannot  recover,  as  the  dam- 
ages would  be  too  remote. 

These  requests  the  court  denied,  but  did  instruct  the  jury,  among 
other  things,  that  if  the  defendant  left  the  plaintiff's  bars  down,  and 
his  cattle  thereby  escaped,  he  was  entitled  to  recover  for  the  time  and 
money  expended  in  hunting  for  them;  that  if  the  sheep  were  in  his 
possession  and  care,  and  they  escaped  in  consequence  of  the  bars  being 
left  down  by  the  defendant,  and  would  not  have  been  killed  but  for  the 
act  of  the  defendant,  he  was  liable  for  their  value,  whether  the  plaintiff 
was  the  absolute  owner  or  not;  that  the  statements  made  by  the  de- 
fendant were  proper  to  be  considered  by  the  jury  upon  the  question 
whether  or  not  the  damages  to  the  plaintiff  were  occasioned  by  the  acts 
of  the  defendant.  To  all  of  which  refusals  and  instructions  the  defend- 
ant excepted. 

The  jury  returned  a  verdict  for  the  plaintiff,  and  assessed  the 
damages  for  hunting  for  the  cattle  at  S13.16,  and  for  the  sheep 
at  $9. 

The  defendant  moved  to  set  the  verdict  aside,  and  for  a  new 
trial. 

The  questions  of  law  arising  on  the  foregoing  case  were  transferred 
by  Stanley,  J.,  C.  C. 

Gushing,  C.  J.  The  objection  to  the  requests  for  instructions  in 
regard  to  the  compromise  is,  that  they  are  not  based  upon  the  evidence. 
The  evidence  was  to  the  effect  that  the  defendant  admitted  his  liability, 
and  said  that  he  would  pay  the  damage.  But  there  was  nothing  said 
or  done  by  the  parties  from  which  the  jury  could  infer  an  accord  and 
satisfaction  if  it  had  been  pleaded,  and  that  defense  could  not  be  taken 
at  all  without  a  plea  to  that  effect. 

As  to  the  objection  that  the  plaintiff  could  not  recover  because  the 
sheep  were  the  property  of  Marshall,  it  seems  enough  to  say  that  it  is 
very  well  settled  in  this  state  that  a  bailee  has  sufficient  interest  in  the 
property  liailed  to  sustain  an  action  for  damage  done  to  it. 

It  should  have  been  left  to  the  jury  to  determine  whether  the  injury 


188  OILMAN   V.   NOYES.  [CHAP.  211. 

was  one  for  which  the  defendant's  fault  was  the  proximate  cause.  The 
court  rightly  refused  to  instruct  the  jury  that  the  damage  was  too 
remote,  because  that  was  a  matter  for  the  jury  to  determine.  I  am 
not  prepared,  however,  to  hold,  that  the  criterion,  for  determining 
whether  the  defendant's  fault  was  the  proximate  cause  of  the  damage, 
is,  whether  the  damage  would  or  would  not  have  happened  without 
the  defendant's  fault. 

This  matter  of  remote  and  proximate  pause  has  been  recently  a  good 
deal  discussed  in  the  case  of  fires  occasioned  by  the  negligent  manage- 
ment of  locomotives.  Where  the  fire  has  spread  from  point  to  point 
and  from  building  to  building,  the  question  to  what  extent  the  negli- 
gence was  the  proximate  cause  has  been  held  to  be  for  the  jury  to  de- 
termine. But  in  no  one  of  those  cases,  whether  the  damage  was  held 
to  be  proximate  or  remote,  could  it  have  happened  at  all  except  for  the 
negligence  complained  of. 

I  think  the  doctrine  of  the  cases  now  is,  that  the  question  whether 
the  damage  is  remote  or  proximate  is  a  question  of  fact  for  the  jury, 
and  that  the  jury  have  to  determine  whether  the  damage  is  the  natural 
consequence  of  the  negligence,  and  such  as  might  have  been  anticipated 
by  the  exercise  of  reasonable  prudence.  If  the  damage  would  not  have 
happened  without  the  intervention  of  some  new  cause,  the  operation  of 
which  could  not  have  been  reasonably  anticipated,  it  would  then  be  too 
remote.  2  Parsons  on  Contracts,  179;  State  v.  Manchester  &  Lawrence 
Railroad,  52  N.  H.  552,  and  cases  there  cited;  Fent  v.  Toledo,  Peoria 
&  Warsaw  Railway  Co.,  59  111.  349;  S.  C.  14  Am.  R.  13. 

In  the  present  case  it  appears  that  the  evidence  tended  to  show  the 
intervention  of  such  new  cause  —  viz.,  bears  —  and  it  would  have  been 
for  the  jury  to  say  whether  it  was  natural  and  reasonable  to  expect 
that  if  the  sheep  were  suffered  to  escape  they  would  be  destroyed  in  that 
way. 

If  these  views  are  correct,  the  verdict  must  be  set  aside,  and  a  new 
trial  granted. 

Smith,  J.  I  concur  in  the  foregoing  conclusions  of  the  chief  justice, 
and  for  the  reasons  given  by  him.  The  principal  question  in  this  case 
has  been  much  discussed  in  the  English  and  American  courts,  though 
but  little  in  this  State.  The  rule,  that  the  plaintiff  can  recover  only 
when  the  defendant's  act  or  negligence  was  the  proximate  cause  of  the 
injury,  is  one  of  universal  application;  but  the  difficulty  lies  in  deter- 
,  mining  when  the  cause  is  proximate  and  when  remote.  It  is  a  mixed 
question  of  law  and  of  fact,  to  be  submitted  to  the  jury  under  proper 
instructions.  We  have  recently  held  that  it  is  always  for  the  jury  to 
say  whether  the  damage  sustained  is  what  the  defendant  ought  to 
have  expected,  in  the  exercise  of  reasonable  care  and  discretion. 
Stark  V.  Lancaster,  57  N.  H.  88,  and  authorities  cited;  Mclntyre  v. 
Plaisted,  57  N.  H.  006.      See,  also,  State  v.  M.  &  L.  R.  R.,  52  N.  H. 


SECT.  III.]  GILMAN   V.  N0YE3.  189 

552;  Gate  v.  Gate,  50  N.  H.  144;  Underhill  v.  Manchester,  45  N.  H. 
218. 

The  rule,  as  thus  laid  down,  is  also  given  in  substance  in  2  Parsons 
on  Gontracts,  456;  2  Gr.  Ev.,  §  256,  and  Sedgwick  on  Damages,  88. 
The  numerous  cases  in  which  this  question  has  been  discussed  are 
cited  by  the  above  authors.  It  would  be  an  unnecessary  labor  to  re- 
view them  in  detail. 

In  this  case  the  e\adence  tended  to  show  the  intervention  of  a  new 
cause  of  the  destruction  of  the  plaintiff's  sheep  after  their  escape  from 
his  pasture,  which  could  not  reasonably  have  been  anticipated.  The 
only  practicable  rule  to  be  drawn  from  all  the  cases,  for  determining 
this  case,  it  seems  to  me,  is,  to  inquire  whether  the  loss  of  the  plain- 
tiff's sheep  by  bears  was  an  event  which  might  reasonably  have  been 
anticipated  from  the  defendant's  act  in  lea\ang  his  bars  down,  under  all 
the  circumstances  of  this  case.  If  it  was  a  natural  consequence  which 
any  reasonable  person  could  have  anticipated,  then  the  defendant's  act 
was  the  proximate  cause.  If,  on  the  other  hand,  the  bears  were  a  new 
agency,  which  could  not  reasonably  have  been  anticipated,  the  loss  of 
the  sheep  must  be  set  down  as  a  remote  consequence,  for  which  the  de- 
fendant is  not  responsible. 

The  jury  were  instructed  that  if  the  sheep  escaped  in  consequence  of 
the  bars  being  left  down  by  the  defendant,  and  would  not  have  been 
killed  but  for  this  act  of  the  defendant,  he  was  liable.  Under  these 
instructions  the  jury  could  not  inquire  whether  the  destruction  of  the 
sheep  by  the  bears  was  an  event  which  might  reasonably  have  been  an- 
ticipated from  the  leaving  of  the  bars  down,  and  for  this  reason  I  agree 
that  the  verdict  must  be  set  aside. 

Ladd,  J.  I  am  unable  to  free  my  mind  from  considerable  doubt  as 
to  the  correctness  of  the  ground  upon  which  my  brethren  put  the 
decision  of  this  case. 

The  defendant  requested  the  court  to  charge  that,  if  the  jury  found 
that  the  sheep  were  killed  by  bears  after  their  escape,  the  damages 
would  be  too  remote.  This  the  court  declined  to  do,  but  did  instruct 
them  that  if  the  sheep  escaped  in  consequence  of  the  bars  being  left 
down  by  the  defendant,  and  would  not  have  been  killed  but  for  that  act 
of  the  defendant,  he  was  liable  for  their  value.  Both  the  request  and 
the  instruction  went  upon  the  ground  that  the  question  of  remoteness 
—  all  the  facts  being  found  —  was  for  the  court,  and  not  for  the  jvu-y. 
Upon  that  distinct  and  simple  question  the  defendant  claimed  one  way 
and  the  court  held  the  other.  I  understand  it  to  be  the  opinion  of  my 
brethren  that  neither  was  right;  that  the  question  of  remoteness  was 
for  the  jury,  and  that  the  court  erred  in  not  so  treating  it.  Whether 
it  is  for  the  jury  or  the  court,  everyone  who  has  considered  the  matter 
will  agree  that  it  is  almost  always  a  troublesome  question,  and  often 
one  attended  with  profound  intrinsic  difficulty. 


190  OILMAN   V.  NOYES.  [CHAP.   III. 

The  verdict  here  settles  (1)  that  the  bars  were  left  down  by  the 
defendant;  (2)  that  the  sheep  escaped  in  consequence  thereof;  (3) 
that  they  would  not  otherwise  have  been  killed.  Was  the  defendant's 
act  the  proximate  cause  of  the  damage?  Was  it  the  cause  in  such  sense 
that  the  law  will  take  cognizance  of  it  by  holding  the  defendant  liable 
to  make  reparation  in  damages?  And  is  that  question  one  for  the  court, 
or  for  the  jury,  to  decide?  The  sheep  would  not  have  been  killed,  the 
jury  say,  but  for  that  act:  does  it  follow  that  the  damage  was  not  too 
remote?  Certainly,  I  think,  it  does  not.  That  one  event  would  not 
have  happened  but  for  the  happening  of  some  other,  anterior  in  point 
of  time,  doubtless  goes  somewhat  in  the  direction  of  establishing  the 
relation  of  cause  and  effect  between  the  two.  But  no  rule  of  law 
as  to  remoteness  can,  as  it  seems  to  me,  be  based  upon  that  one  cir- 
cumstance of  relation  alone,  because  the  same  thing  may  very  likely 
be  true  mth  respect  to  many  other  antecedent  events  at  the  same  time. 
The  human  powers  are  not  sufficient  to  trace  any  event  to  all  its  causes, 
or  to  say  that  anything  which  happens  would  have  happened  just  as  it 
did  but  for  the  happening  of  myriads  of  other  things  more  or  less  re- 
mote and  apparently  independent.  The  maxim  of  the  schoolmen  — 
Causa  causantis,  causa  est  causati  —  may  be  true,  but  it  obviously  leads 
into  a  labyrinth  of  refined  and  be-\\-ildering  speculation  whither  the  law 
cannot  attempt  to  follow.  This  case  furnishes  an  illustration.  The 
jury  say  the  sheep  would  not  have  been  killed  by  bears  but  for  their 
escape,  and  would  not  have  escaped  but  for  the  bars  being  left  down. 
But  it  is  equally  certain,  without  any  finding  of  the  jury,  that  they 
would  not  have  been  killed  by  bears  if  the  bears  had  not  been  there  to 
do  the  deed;  and  how  many  antecedent  facts  the  presence  of  the  bears 
may  involve,  each  one  of  which  bore  a  causative  relation  to  the  princi- 
pal fact  sufficiently  intimate  so  that  it  may  be  said  the  latter  would  not 
have  occurred  but  for  the  occurrence  of  the  former,  no  man  can  say. 
Suppose  the  bears  had  been  chased  by  a  hunter,  at  any  indefinite  time 
before,  whereby  a  direction  was  given  to  their  wanderings  which  l)rought 
them  into  the  neighborhood  at  this  particular  time;  suppose  they 
were  repulsed  the  night  before  in  an  attack  upon  the  beehives  of  some 
farmer  in  a  distant  settlement,  and,  to  escape  the  stings  of  their  vin- 
dictive pursuers,  fled,  with  nothing  but  chance  to  direct  their  course, 
towards  the  spot  where  they  met  the  sheep;  suppose  they  were  fright- 
ened that  morning  from  their  repast  in  a  neighboring  cornfield,  and  so 
brought  to  the  place  of  the  fatal  encounter  just  at  that  particular  point 
of  time. 

Ob\iously  the  number  of  events  in  the  history  not  only  of  those  in- 
dividual bears,  but  of  their  progenitors  clear  back  to  the  pair  that,  in 
instinctive  obedience  to  the  di\-ine  command,  went  in  unto  Noah  in  the 
ark,  of  which  it  may  be  said,  but  for  this  the  sheep  would  not  have  been 
killed,  is  simply  without  limit.  So  the  conduct  of  the  sheep,  both 
before  and  after  their  escape,  opens  a  field  for  speculation  equally  pro- 


SECT.  III.]  OILMAN   V.  NOTES.  191 

found  and  equally  fruitless.  It  is  easy  to  imagine  a  vast  variety  of 
circumstances,  without  which  they  would  not  have  made  their  escape 
just  at  the  time  they  did  though  the  bars  were  down,  or,  having  escaped, 
would  not  have  taken  the  direction  to  bring  them  into  the  way  of  the 
bears  just  in  season  to  be  destroyed,  as  they  were.  Such  a  sea  of 
speculation  has  neither  shores  nor  bottom,  and  no  such  test  can  be 
adopted  in  drawing  the  uncertain  line  between  consequences  that  are 
actionable  and  those  which  are  not. 

Some  aid  in  dealing  with  this  question  of  remoteness  in  particular 
cases  is  furnished  by  Lord  Bacon's  rule  —  In  jure  causa  proxima,  non 
remota  spedatur —  and  other  formulas  of  a  like  description,  because  they 
suggest  some  boundaries,  though  indistinct,  to  a  wilderness  that  other- 
wise, and  perhaps  in  the  nature  of  things,  has  no  limit. 

Where  damages  are  claimed  for  the  breach  of  a  contract,  it  has  been 
said  that  the  nearest  application  of  anything  like  a  fixed  rule  is,  that 
the  injury  for  which  compensation  is  asked  should  be  one  that  may  be 
fairly  taken  to  have  been  contemplated  by  the  parties  as  the  possible 
result  of  the  breach  of  contract.  Cockburn,  C.  J.,  in  Hobbs  v.  -London 
&  S.  W.  Railway  Co.,  L.  R.  10  Q.  B.  117.  In  tort,  they  must  be  the 
legal  and  natural  consequence  of  the  wTongful  act.  Sedgwick  on 
Damages,  82,  and  cases  cited;  2  Gr.  Ev.,  §§  252-256,  and  cases  cited. 
But  an  examination  of  the  numerous  cases  where  this  matter  has  been 
carefully  and  learnedly  discussed,  shows  that  the  intrinsic  difficulties 
of  the  subject  are  not  removed,  although  they  may  be  aided,  by  the 
application  of  such  rules.  Whether  the  extent,  degree,  and  intimacy 
of  causation  are  sufficient  to  bring  the  injurious  consequences  of  an 
act  within  the  circle  of  those  wrongs  for  which  the  law  supplies  a 
remedy  still  remains  the  great  question  to  be  determined  in  each  case 
upon  its  individual  facts.  That  the  subject  is  one  beset  with  difficulties 
is  conspicuously  shown  by  the  great  number  of  cases,  from  Scott  r. 
Shepherd,  2  Wm.  Bl.  892  (where  Sir  William  Blackstqne  was  unable 
to  agree  wath  the  court),  down  to  the  present  time,  in  which  judges  of 
equal  learning  and  ability  have  differed  as  to  the  application  of  rules 
by  which  all  admit  they  are  to  be  governed. 

The  recent  case  of  Brand  v.  Hammersmith  &  City  Railway  Co., 
L.  R.  1  Q.  B.  130,  well  illustrates  this  remark,  although  the  construc- 
tion of  a  statute  was  there  involved.  It  was  held  l)y  the  court  of 
queen's  bench  (Mellor  and  Lush,  JJ.,  delivering  opinions),  that  the 
owner  of  a  house,  none  of  whose  lanfls  have  been  taken  for  the  pur- 
poses of  a  railway,  cannot,  under  certain  statutes,  recover  compensa- 
tion in  respect  of  injury  to  the  house  —  depreciating  its  value  —  caused 
by  vibration,  smoke,  and  noise  in  running  locomotives  with  trains  in 
the  ordinary  manner  after  the  constniction  of  the  railway.  L'pon 
error  to  the  exchequer  chamber  this  decision  of  the  queen's  bench 
was  reversed  by  Bramwell,  B.,  Keating,  and  Montague  Smith,  JJ., 
Channel,  B.,  dissenting.     Sir  William  Earle,  while  chief  justice  of  the 


192  OILMAN    V.  NOYES.  [CHAP.  III. 

common  pleas,  had  also  prepared  an  opinion  sustaining  the  judgment 
of  the  queen's  bench,  which  was  not  delivered  because  the  formal 
judgment  of  the  court  was  delayed  till  after  his  resignation.  L.  R.  2 
Q.  B.  223,  note  p.  246. 

The  cause  was  then  carried,  upon  error,  to  the  House  of  Lords,  and 
tile  judges  were  called  in.  Of  the  judges  who  returned  answers,  five 
were  in  favor  of  affirming  the  judgment  of  the  exchequer  chamber, 
xaz.,  Willes,  Keating,  and  Lush,  JJ.,  and  Bramwell  and  Piggott,  BE.; 
while  Mr.  Justice  Blackburn  delivered  a  strong  opinion  the  other 
way.  In  the  House  of  Lords,  Lord  Chelmsford  and  Lord  Colonsay  were 
for  reversing  the  judgment  of  the  exchequer  chamber,  while  the  Lord 
Chancellor  was  for  affirming  it.  So  that,  of  all  the  judges  and  law  lords 
who  examined  the  question  (including  Sir  William  Earle),  six  were  of 
the  opinion  that  the  damages  could  not  be  recovered,  and  seven  of  a 
contrary  opinion;  while  Lush,  J.,  changed  his  mind  between  the  hear- 
ing in  the  queen's  bench  and  that  before  the  House  of  Lords,  and  de- 
livered an  opinion  the  other  way.  The  case  was  finally  decided  against 
the  opinions  of  a  majority  of  the  judges  who  considered  it. 

The  question  is,  whether  courts  can  relieve  themselves  from  trouble- 
some inquiries  of  this  description  by  handing  them  over  to  the  jury 
for  determination.  I  am  not  now  prepared  to  admit  that  they  can. 
In  this  case,  as  we  have  seen,  the  verdict  settles  that  the  defendant  left 
the  bars  down,  that  the  sheep  escaped  in  consequence,  and  that  they 
would  not  have  been  killed  but  for  their  escape.  Clearly,  no  dis- 
puted fact  is  left  unsettled.  The  only  question  left  open  is,  whether  the 
damage  is  within  or  without  the  line  drawn  by  the  law  as  the  boundary 
between  those  injuries  for  which  the  law  compels  compensation  to  be 
made  and  those  for  which  it  does  not.  It  is  the  law  that  furnishes 
remedies.  Whether  any  act  or  default  amounts  to  a  legal  WTong  and 
injury  for  which  compensation  may  be  recovered  depends  upon  the 
law,  and  is  to  be  determined  by  an  application  of  rules  either  furnished 
by  the  legislature  in  the  form  of  statutes,  or  found  existing  in  the  com- 
mon law.  If  the  law  takes  no  cognizance  of  an  act,  furnishes  no  remedy 
for  its  injurious  results,  then  there  is  no  remedy;  and  though  it  may 
be  wrong  in  a  sentimental  or  moral  point  of  view,  the  sufferer  can 
have  no  recompense.  And  I  cannot  see  what  difference  it  makes  in 
this  respect  whether  the  rule  is  established  by  a  statute,  or  comes  from 
the  common  law.  That  A  can  recover  damages  against  B  for  an  assault 
and  battery  committed  upon  him  by  the  latter,  depends  just  as  much 
upon  a  rule  of  positive  law,  in  this  State,  as  that  he  may  recover  against 
C,  who  has  unlawfully  furnished  liquor  to  B,  who,  in  a  state  of  intoxi- 
cation produced  by  the  liquor,  makes  the  assault.  One  is  a  pro- 
vision of  the  common  law;  the  other,  of  a  statute.  When  the  court  of 
South  Carolina  held  that  where  a  person,  against  the  law,  furnished  a 
slave  with  intoxicating  liquor,  by  which  he  became  drunk  and  lay  out 
all  night,  and  died  in  consequence,  the  owner  of  the  slave  could  recover 


I 


SECT.  III.]  OILMAN   V.  NOYES.  193 

his  value  against  the  person  who  furnished  the  Hquor  (Berkley  v.  Har- 
rison, cited  in  Sedgwick  on  Damages,  89),  they  were  declaring  and  apply- 
ing a  rule  of  law  as  much  as  though  that  remedy  had  been  given  by  a 
statute  similar  to  ours.  So  it  is  in  the  great  mass  of  cases  with  which 
the  books  are  filled:  the  question  as  to  remoteness  is  determined  by 
the  court,  and  the  rule  administered  as  a  rule  of  law.  See  cases  cited 
in  Sedgwick  on  Damages,  ch.  Ill,  passim.  A  large  number  of  English 
and  American  cases  might  be  added,  were  any  citation  of  authorities 
necessary. 

In  Hobbs  v.  The  London  &  S.  W.  Railway  Co.,  already  referred  to,  the 
plaintiff,  with  his  wife  and  two  children,  took  tickets  on  the  defendants' 
railway  from  Wimbledon  to  Hampton  Court,  by  the  midnight  train. 
They  got  into  the  train,  but  it  did  not  go  to  Hampton  Court,  but 
went  along  the  other  branch  to  Esher,  where  the  party  were  compelled 
to  get  out.  It  being  so  late  at  night,  the  plaintiff  was  unable  to  get 
a  conveyance  or  accommodation  at  an  inn;  and  the  party  walked 
to  the  plaintiff's  house,  a  distance  of  about  five  miles,  where  they 
arrived  about  three  in  the  morning.  It  was  a  drizzling  night,  and 
the  wife  caught  cold  and  was  laid  up  for  some  time,  being  unable 
to  assist  her  husband  in  his  business  as  before,  and  expenses  were  in- 
curred for  medical  attendance.  The  jury  gave  £28  damages — viz., 
£8  for  the  inconvenience  suffered  by  ha\'ing  to  walk  home,  and  £20 
for  the  wife's  illness  and  its  consequences.  The  court  held  the  £20 
too  remote.  Blackburn,  J.,  after  stating  the  rule  substantially  as 
given  by  the  chief  justice,  says:  "For  my  own  part,  I  do  not  feel  that 
I  can  go  further  than  that.  It  is  a  vague  rule,  and,  as  Bramwell,  B., 
said,  it  is  something  like  ha\'ing  to  draw  a  line  between  night  and  day : 
there  is  a  great  duration  of  twilight  when  it  is  neither  night  nor  day." 
And  further  on :  "I  do  not  think  it  is  anyone's  fault  that  it  cannot  be 
put  more  definitely.  I  think  it  must  be  left  as  vague  as  ever  as  to  where 
the  line  must  be  drawn  —  but  I  think,  in  each  case,  the  court  must  say 
whether  it  is  on  the  one  side  or  the  other;  and  I  do  not  think  that  the 
question  of  remoteness  ought  ever  to  be  left  to  a  jury.  That  would  be, 
in  effect,  to  say  that  there  shall  be  no  such  rule  as  to  damages  being 
too  remote;  and  it  would  be  highly  dangerous  if  it  was  to  be  left  gen- 
erally to  the  jury  to  say  whether  the  damage  was  too  remote  or  not." 

Of  course,  all  matters  of  fact,  with  respect  to  the  causative  relation 
that  exists  between  the  act  complained  of  and  the  injurious  conse- 
quences for  which  damages  are  sought,  must  be  found  by  the  jury; 
and  so,  in  one  sense,  it  may  be  said  that  the  question  of  remoteness  is  for 
the  jury,  under  proper  instructions  by  the  court;  but  my  doubt  is, 
whether  proper  instructions  by  the  court  should  not  contain  specific 
direction  as  to  whether  any  given  fact  of  injury,  if  found  proved,  would 
or  would  not,  with  respect  to  the  alleged  cause,  occupy  the  position 
of  remoteness  beyond  the  actionable  degree. 

In  the  present  case,  if  all  the  facts  found  by  the  jury  had  been  well 


I 


194  OILMAN    V.  NOYES.  [CHAP.  III. 

pleaded  in  the  declaration,  and  there  were  a  demurrer,  would  it  not  be 
the  duty  of  the  court  to  say  whether  the  action  could  be  maintained? 
There  are  a  few  American  cases  which  seem  to  give  countenance  to 
the  \'iew  upon  which  this  case  has  been  decided  by  the  court.  Fair- 
banks V.  Kerr,  70  Pa.  St.  86;  Saxton  v.  Bacon,  31  Vt.  540;  Fent  v. 
Toledo,  Peoria  &  Warsaw  Railway  Co.,  59  111.  349,  are,  perhaps,  to  be 
so  regarded. 

Should  it  be  said  that  the  question,  whether  a  given  consequence 
is  one  which  might  fairly  be  anticipated  by  one  knowing  the  facts,  is  in 
its  nature  a  question  of  fact,  it  must  at  the  same  time  be  admitted  that 
it  is  a  fact  which  lies  rather  in  the  region  of  conjecture  than  of  evidence 
and  must  be  determined  by  an  appeal  to  the  experience  and  knowledge 
of  human  nature,  and  the  natural  sequence  of  cause  and  effect  possessed 
by  him  who  is  to  decide  it,  rather  than  by  weighing  testimony  and  bal- 
ancing proofs,  while  it  is  at  the  same  time  pure  matter  of  law  whether 
a  given  act  is  prohibited,  and  pure  matter  of  law  and  construction 
whether  a  remedy  is  given  by  the  law,  written  or  unwritten,  for  an 
injury  sustained  in  consequence  of  such  act.  But,  however  the  Ameri- 
can cases  referred  to  are  to  be  understood,  it  seems  to  me  the  great 
weight  of  authority  is  against  the  conclvision  of  the  court;  for  every 
case,  where  the  simple  question  of  remoteness  has  been  determined 
by  the  court,  and  the  rule  applied  as  a  rule  of  law,  would  seem  to  be  a 
direct  authority  the  other  way.  Those  cases  are  too  numerous  and  too 
familiar  to  need  citation. 

The  charge  of  the  court  was  in  accordance  with  this  view.  The  jury 
were  required  to  find  whether  the  act  of  the  defendant  in  leaving  the 
bars  down  was  an  event  without  which  the  loss  would  not  have  occurred; 
and  then  the  court  undertook  to  apply  a  rule  of  law  by  saying  that,  if 
that  particular  relation  of  cause  and  effect  did  exist,  the  consequence 
was  so  near,  so  direct,  and  followed  so  naturally  from  the  cause,  that 
it  must  be  regarded  as  a  legal  consequence  for  which  the  defend- 
ant should  be  held  to  make  reparation  in  damages.  I  am  not  prepared 
to  say  that  this  was  error. 

As  the  case  is  disposed  of  upon  different  grounds,  it  is  unnecessary  to 
consider  whether  the  holding  of  the  court  upon  this  question  of  remote- 
ness was  right  or  not.  A  few  cases  may,  however,  be  referred  to,  which 
bear  more  or  less  directly  upon  that  question,  as  well  as  the  main 
question  I  have  been  considering.  In  Powell  v.  Salisbury,  2  Y.  &  J. 
391,  the  plaintiff  declared  in  case  against  the  defendant,  for  not  repair- 
ing his  fences,  per  quod  the  plaintiff's  horses  escaped  into  the  de- 
fendant's close,  and  were  there  killed  by  the  falling  of  a  haystock: 
held,  that  the  damage  was  not  too  remote,  and  that  the  action  was 
maintainable.  In  Lee  v.  Riley,  18  C.  B.  (N.  S.)  722,  the  defendant's 
mare  strayed  into  a  field  belonging  to  the  plaintiff,  through  the  defect 
of  a  fence  which  the  defendant  was  bound  to  repair,  and  kicked  the 
plaintiff's    horse:  held,  that    the  defendant  was    responsible  for   his 


SECT.  III.]  WEST   V.   WARD.  195 

mare's  trespass,  and  that  the  damage  was  not  too  remote.  In  Law- 
rence V.  Jenkins,  L.  R.  8  Q.  B.  274,  the  plaintiff's  cows  strayed  upon 
the  defendant's  close  through  a  gap  in  the  division  fence,  made  by  the 
carelessness  of  the  defendant's  servants  in  felling  a  tree  upon  it,  and 
there  fed  on  the  leaves  of  a  yew  tree,  and  died  in  consequence:  held, 
that  the  damage  was  not  too  remote,  and  that  the  defendant  was  liable 
to  the  plaintiff  for  the  loss  of  the  cows.  In  Cate  v.  Gate,  50  N.  H.  144, 
a  question  very  similar  to  this  was  left  undecided.  But  Bellows,  C.  J., 
says:  "Upon  a  careful  consideration  of  the  cases,  we  think  there 
is  some  preponderance  of  authority  in  favor  of  the  position  that,  in  a 
case  like  this,  a  party  is  in  some  form  of  action  responsible  for  the  con- 
sequences of  his  wrongful  act,  when  they  are  distinctly  traceable  to 
that  act,  although  such  consequences  may  be  both  remote  and  acciden- 
tal." In  Davis  v.  Garrett,  6  Bing.  716,  the  defendant  contracted  to 
carry  in  his  barge  the  plaintiff's  lime,  and  the  master  of  the  barge  de\'i- 
ated  unnecessarily  from  the  usual  course,  and  during  the  deviation  a 
tempest  wetted  the  lime,  and,  the  barge  taking  fire,  the  whole  was  lost. 

The  defendant  was  held  liable  for  the  lime,  the  cause  of  the  loss  being 
sufficiently  proximate.  The  court  say  in  their  opinion,  delivered  by 
Tindal,  C.  J. :  "  We  think  the  real  answer  to  the  objection  [that  of  re- 
moteness] is,  that  no  wrongdoer  can  be  allowed  to  apportion  or  qualify 
his  own  wrong."  But  in  Greenland  v.  Chaplin,  5  Exch.  (W.  H.  &  G.) 
243,  Pollock,  C.  B.,  says:  "I  am  desirous  that  it  may  be  understood 
that  I  entertain  considerable  doubt  whether  a  person  who  is  guilty 
of  negligence  is  responsible  for  all  the  consequences  which  may  under 
any  circumstances  arise,  and  in  respect  of  mischief  whicji  could  by  no 
possibility  have  been  foreseen,  and  which  no  reasonable  person  would 
have  anticipated." 

Upon  the  other  questions  in  the  case  I  agree  with  my  brethren,  for 
the  reasons  given  by  them. 

According  to  the  views  of  a  majority  of  the  court,  there  was 

A  new  trial  granted. 


WEST  V.  WARD. 
Supreme  Court  of  Iow^\,  1889. 

[Reported  77  la.  322.] 

Beck,  J.  I.  The  petition  alleges  substantially  that  plaintiff  was 
the  lessee  of  certain  pasture  land  wherein  he  kept  certain  valuable 
horses,  among  others  a  highly  bred  and  well-trained  young  trotting 
mare  of  great  value;  that  defendant  unlawfully  went  upon  the  prem- 
ises, wrongfully  and  negligently  opened  the  fence  enclosing  it,  and  left 
it  open,  which  permitted  the  young  mare  to  escape  from  the  pasture; 


196  WEST   V.    WARD.  [CHAP.  III. 

that  the  country  surrounding  the  pasture  was  largely  fenced  with 
barbed  wnre,  which  is  dangerous  to  stock  running  at  large ;  and  that 
the  mare,  in  attempting  to  return  to  the  locality  from  which  she  had 
been  brought,  became  entangled  in  a  barbed-wire  fence,  and  was 
severely  cut  and  wounded,  so  that  her  value  was  almost  destroyed. 
The  e\'idence  tends  to  support  the  allegations  of  the  petition,  show- 
ing that  the  country  about  the  pasture  was  largely  fenced  vdth 
barbed  wire,  which  is  dangerous  to  stock,  especially  those  running  at 
large.  The  defendant  moved  the  court  for  a  verdict  in  his  behalf 
on  the  following  grounds:  "First.  The  e\ndence  introduced  by  the 
plaintiff  fails  to  show  that  the  WTong  of  the  defendant  of  which  the 
plaintiff  claims  is  the  proximate  cause  of  the  injury  for  which  he  sues. 
Second.  The  evidence  of  the  plaintiff  shows  affirmatively  that  the 
"WTong  of  the  defendant  of  which  the  plaintiff  pleads  is  not  the  proximate 
cause  of  the  injury  for  which  plaintiff  sues,  but  that  it  is  the  result  of 
an  independent  cause.  Third.  No  evidence  has  been  introduced 
tending  to  show  that  the  injury  of  which  the  plaintiff  claims  is  the  usual 
and  ordinary,  natural  and  probable  and  approximate  result  of  the  al- 
leged WTongful  conduct  of  the  defendant."  This  motion  was  sustained, 
and  a  verdict  accordingly  returned,  upon  which  a  judgment  was  ren- 
dered for  defendant. 

II.  We  need  not  determine  whether  the  question  of  the  sufficiency 
of  the  evidence  to  show  that  the  act  of  defendant  in  opening  the  fence 
was  the  proximate  cause  of  the  injury,  and  the  usual,  ordinary,  natural, 
and  probable  result  of  the  defendant's  act  was  exclusively  for  the  court 
or  for  the  jury.  Upon  this  question,  see  Dubuque  Wood,  etc.,  Ass'n 
V.  City  and  County  of  Dubuque,  30  Iowa,  176;  Knapp  i\  Railway  Co., 
71  Iowa,  41;  Handelun  v.  Railway  Co.,  72  Iowa,  709;  Bosch  v.  Rail- 
way Co.,  44  Iowa,  402;  Scheffer  x\  Railway  Co.,  105  U.  S.  249.  If  the 
record  before  us  shows  that  defendant's  act  was  the  proximate  cause  of 
the  injury,  and  should  have  been  so  found,  the  direction  of  the  court 
requiring  a  verdict  for  defendant  is  erroneous.  We  are  therefore 
to  inquire  whether  the  evidence  shows  that  the  injury  to  the  mare  was 
the  usual,  ordinary,  natural,  and  probable  result  of  defendant's  act  in 
opening  the  fence  of  the  pasture. 

III.  The  plaintiff's  mare  was  kept  in  the  enclosure  of  the  pasture, 
not  only  that  she  might  graze,  but  also  that  she  might  be  protected 
from  the  dangers  to  such  property  resulting  from  her  running  at  large. 
These  dangers  are  many  and  obvious.  Among  them  is  the  danger  from 
))arbed-wire  fences,  which,  the  evidence  tends  to  show,  especially 
exists  as  to  horses  of  her  kind  running  at  large.  If  she  had  been  kept 
in  the  enclosure  of  the  pasture  these  dangers  as  to  her  would  not  have 
existed.  When,  through  the  defendant's  act,  she  was  permitted  to  run 
at  large,  the  dangers  commenced,  and  ended  in  the  injury.  The 
animal  was  exposed  to  the  danger  of  barbed-wire  fences  as  soon  as  she 
commenced  running  at  large.    It  is  plain  that  defendant's  act  exposed 


SECT.  III.]  KELSEY   V.    REBUZZINI.  197 

the  mare  to  the  danger,  and  it  is  equally  plain  that  the  injury  resulted 
from  the  act.  It  is  also  plain  that  this  injury  was  the  proximate  result 
of  defendant's  acts,  for  it  immediately  followed  that  act  as  a  sequence. 
It  was  the  usual,  ordinary,  natural,  and  probable  result,  for  the  e^-i- 
dence  tends  to  show  that  it  was  dangerous  to  permit  horses  of  this  kind 
to  run  at  large.  The  word  "  dangerous  "  means  "  attended  with  danger, 
perilous,  full  of  risk,"  etc.  Where  there  is  danger,  peril,  risk  of  a  par- 
ticular injury,  which  actually  occurs,  we  must  surely  say  that  it  is  the 
usual,  ordinary,  natural,  and  probable  result  of  the  act  exposing  the 
person  or  thing  injured  to  the  danger  and  peril.  In  the  case  before 
us  the  mare  was  not  exposed  to  danger  of  injury  before  she  was  per- 
mitted to  run  at  large.  Defendant's  acts  exposed  her  to  danger  of  the 
injury.  The  injury  followed  without  any  intervening  act  adding  to 
the  danger  or  aiding  to  bring  the  animal  within  the  exposure  thereto. 
Surely  defendant's  act  in  breaking  the  fence,  and  thus  permitting  the 
mare  to  run  at  large,  was  the  direct  and  proximate  cause  of  the  injury. 
We  reach  the  conclusion  that  the  district  court  erred  in  directing  the 
jury  to  return  a  verdict  for  defendant. 

The  judgment  is  therefore  reversed.^ 


KELSEY  V.   REBUZZINI. 
Supreme  Court  of  Errors  of  Connecticut,  1913. 

[Reported  89  Atl.  Rep.   170.] 

The  defendant  and  one  Woodruff  were  owners  of  adjoining  tracts 
of  land  in  Guilford.  The  boundary  line  between  these  tracts  was  the 
center  line  of  a  stream  known  as  WVst  River,  which  flows  in  a  southerly 
direction.  The  defendant  owned  the  east  tract  and  W^oodruff  the  west. 
The  southern  boundary  line  of  the  two  tracts  was  a  continuous  line, 
and  one  Cobb  owned  a  tract  adjacent  to  both  pieces  on  the  south. 
Through  this  Cobb  land  the  stream  flowed.  The  boundary  fence  be- 
tween the  defendant  and  Woodruff  was  built  of  posts  and  three  strands 
of  wire.  From  the  Cobb  lot  northerly  for  a  little  more  than  one-half  the 
length  of  the  other  two  lots  it  was  situated  on  the  westerly  or  Woodruff 
side  of  the  stream.  This  portion  was  by  agreement  of  the  parties  main- 
tained by  Woodruff.  Beginning  at  the  termination  of  this  portion  of 
the  fence  it  crossed  the  stream  and  continued  northerly  on  the  easterly 
or  Rebuzzini  side  of  the  stream.  This  section,  pursuant  to  the  agree- 
ment referred  to,  was  maintained  by  the  defendant.  On  July  16, 
1912,  the  Woodruff  lot,  as  the  defendant  well  knew,  was  used  for  the 
pasturage  of  cattle,  and  11  heifers  belonging  to  the  plaintiff  were 
pastured  there  for  hire.    On  the  previous  day  a  cow  belonging  to  the 

1  See  Texas  &  P.  Ry.  v.  Bigham,  90  Tex.  223,  38  S.  W.  162.  —  Ed. 


198  KELSEY   V.   REBUZZINI.  [CHAP.  III. 

defendant  had  escaped  from  his  land  onto  Woodruff's.  In  the  effort 
to  drive  back  the  cow  two  of  the  defendant's  children  took  down  the 
two  upper  strands  of  wire  in  one  of  the  lengths  of  fence  belonging  to 
the  defendant  to  maintain.  They  were  unable  to  replace  the  wire,  and 
so  reported  to  the  defendant  upon  his  arrival  home  that  evening.  He 
took  no  steps  to  repair  the  fence  until  after  the  occurrences  hereinafter 
related.  On  the  following  day  nine  of  the  plaintiff's  heifers  passed 
through  the  fence  at  the  point  where  the  wires  had  been  torn  down  into 
the  defendant's  lot.  They  then  turned  south  along  the  stream,  and 
finally  into  it  and  down  it  until  they  reached  Cobb's  lot,  onto  which 
they  passed  by  reason  of  there  being  no  sufficient  fence  across  the  stream 
at  that  point.  A  portion  of  Cobb's  land  lying  back  some  four  or  five 
rods  from  the  stream  was  cultivated  by  him,  and  had  corn  and  pota- 
toes growing  upon  it,  the  potatoes  being  nearest  the  stream.  Some 
time  prior  to  this  day  Cobb  had  caused  a  poisonous  mixture  to  be 
sprayed  upon  the  potato  \ines  for  their  protection.  This  mixture 
had  been  prepared  on  the  west  bank  of  the  stream  by  Cobb's  agents, 
and  in  mixing  it  they  had  spilled  some  portion  of  it  upon  the  grass  upon 
the  bank  of  the  stream,  and  also  to  some  extent  upon  the  grass  between 
the  place  where  it  was  mixed  and  the  potatoes,  and  in  spraying  the 
potatoes  some  of  the  mixture  also  was  sprayed  upon  the  grass  along  the 
edge  of  the  potatoes.  When  the  plaintiff's  heifers  reached  Cobb's  land 
they  left  the  stream  and  passed  along  the  west  bank,  cropping  the  grass 
where  the  poison  had  been  spilled  and  sprayed,  and  thus  ate  some 
of  the  poison  from  the  effects  of  which  five  of  them  died.  They  ate 
no  potato  tops.  The  defendant  was  familiar  with  the  use  of  poisonous 
substances  for  spra^ang  potato  vines,  but  did  not  know  that  Cobb's 
potatoes  had  been  sprayed ;  nor  did  he  know  that  any  poison  had  been 
spilled  or  sprayed  upon  the  grass.  The  diiision  fence  between  the 
defendant  and  Woodruff  was  not  a  legal  fence  as  Woodruff  knew,  but  he 
did  not  know  the  condition  of  it  as  left  by  the  defendant's  children. 

Prentice,  C.  J.  The  plaintiff  is  not  entitled  to  a  judgment  against 
the  defendant  unless  two  legal  propositions  are  well  founded,  to  wit : 
(1)  That  the  defendant  owed  to  him  for  the  protection  of  his  heifers 
grazing  in  Woodruff's  pasture,  from  the  consequences  to  them  of  es- 
cape therefrom,  the  duty  of  maintaining  a  sufficient  division  fence  at 
the  point  where  they  made  their  escape  onto  the  defendant's  premises; 
and  (2)  that  the  breach  of  this  duty,  arising  from  the  insufficiency  of 
the  fence  at  the  point  of  escape,  was  the  proximate  or  legal  cause  of  the 
loss  which  befell  him  through  the  death  of  his  heifers.  The  first  of 
these  propositions  may  be  assumed  without  decision,  and  yet  the  plain- 
tiff must  fail  in  his  action  by  reason  of  his  failure  to  support  the  second. 

(1)  We  have  accepted  as  the  most  satisfactory  definition  of  a  proxi- 
mate cause  as  related  to  a  subsequent  event,  as  one  "which, in  a  natural 
sequence,  unbroken  by  any  new  and  intervening  cause,  produces  that 
event,  and  without  which  that  event  would  not  have  occurred.     It 


SECT.  III.]  KELSEY   V.  REBUZZINI.  199 

must  be  an  efficient  act  of  causation,  separated  from  its  effect  by  no 
other  act  of  causation."  Smith  v.  Conn.  Ry.  &  Lighting  Co.,  80  Conn. 
268,  270,  67  Atl.  888,  889  (17  L.  R.  A.  (N.  S.)707);  Swayne  z^.Conn.  Co., 
86  Conn.  439,  44.5,  85  Atl.  634,  737.  The  acceptance  of  this  not  unusual 
definition,  however,  does  not  by  any  means  close  the  door  of  debate  as  to 
what  it  signifies  in  its  practical  application  to  varying  conditions.  There 
remains,  for  instance,  the  question  of  what  it  meant  by  "natural  se- 
quence," and  what  by  "a  new  and  intervening  cause"  breaking  the 
sequence.  Fortunately  the  exigencies  of  this  case  do  not  call  upon  us 
to  enter  into  the  discussion  which  has  been  invoked  by  attempts  to 
arrive  at  a  comprehensive  answer  to  these  questions.  The  facts,  as 
found,  present  a  situation  which  does  not  lie  in  fairly  debatable  ground. 
The  immediate  cause  of  the  death  of  the  plaintiff's  heifers  was  their 
cropping  poisoned  grass  upon  the  Cobb  lot.  The  insufficient  length  of 
fence  through  which  they  passed  to  the  defendant's  premises  did  not 
harm  them.  It  did  not  set  in  motion  any  agency  of  destruction  which 
before  it  ceased  to  operate  either  directly,  or  through  the  interposi- 
tion of  some  other  agency  set  in  motion  by  it,  caused  the  death  of  the 
heifers.  It  brought  about  a  new  condition  or  situation  rather.  Smith- 
wick  V.  Hall  &  Upson  Co.,  59  Conn.  261,  269,  21  Atl.  924,  12  L.  R.  A. 
279,  21  Am.  St.  Rep.  104.  This  new  situation  was  not  one  which 
exposed  the  cattle  to  new  danger  except  as  the  intervention  of  some 
person's  wrongful  conduct  might  have  created  or  might  create  such  dan- 
ger. Without  such  intervention  they  would,  as  far  as  appears,  have 
been  as  safe  upon  the  defendant's  land  as  upon  Woodruff's.  Such  in- 
tervention there  was.  Either  Woodruff  or  Cobb  or  the  defendant,  we 
know  not  which,  had  failed  to  maintain  a  sufficient  fence  across  the 
course  of  the  stream  where  it  entered  upon  Cobb's  land.  As  a  con- 
sequence the  heifers  passed  upon  that  land.  Here  they  would  still  have 
been  exposed  to  no  hazard,  had  not  someone  carelessly  spilled  poison 
upon  the  grass  there.  But  it  was  there,  and  they  were  there,  and  they 
ate  of  it  and  died.  We  thus  have  a  condition  of  things  where  the  de- 
fendant's original  wrong  in  neglecting  to  maintain  the  division  fence 
between  him  and  Woodruff  led  to  harmful  results,  solely  in  conse- 
quence of  the  intervention  of  the  acts  or  omissions  of  other  parties, 
unrelated  to  defendant's  wrong  save  in  the  sequence  of  events  pro- 
ducing new  situations,  in  the  final  one  of  which  the  careless  conduct  of 
a  new  wrongdoer  came  into  deadly  operation. 

(2)  The  rule  laid  down  by  Cooley  is  that  in  such  cases  the  injury 
will  be  imputed  to  the  last  wrongful  act  as  the  proximate  cause,  and 
not  to  that  which  was  more  remote.  "  If  the  original  act  was  wrongful 
and  would  naturally,  according  to  the  ordinary  course  of  e\'ents,  prove 
injurious  to  some  other  person  or  persons,  and  does  actually  result  in 
injury  through  the  intervention  of  other  causes  which  are  not  wrongful, 
the  injury  shall  be  referred  to  the  wrongful  cause  passing  by  those  which 
were  innocent.     But  if  the  original  wrong  only  becomes  injurious  in 


200  *  KELSEY  V.   KEBUZZINI.  [CHAP.  III. 

consequence  of  the  intervention  of  some  distinctly  wrongful  act  or 
omission  by  another,  the  injury  shall  be  imputed  to  the  last  wrong  as 
the  proximate  cause,  and  not  to  that  which  was  more  remote."  Cooley 
on  Torts  (3d  Ed.)  101.  This  rule  is  doubtless  too  broadly  stated,  and 
needs  qualification  in  this:  That  the  negligent  action  of  the  first  party 
in  fault  will  be  regarded  as  the  proximate  cause  whenever  the  negligent 
act  or  acts  of  the  subsequent  WTongdoer  or  wrongdoers  are  such  as 
the  original  wrongdoer,  as  a  man  of  ordinary  experience  and  sagacity, 
acquainted  with  all  the  circumstances,  could  reasonably  have  antici- 
pated. "  If  such  a  person  could  have  anticipated  that  the  intervening 
act  of  negligence  might,  in  a  natural  and  ordinary  sequence,  follow  the 
original  act  of  negligence,  the  person  first  in  fault  is  not  released  from 
liability  by  reason  of  the  intervening  negligence  of  another.  If  it  could 
have  not  been  thus  anticipated,  then  the  intervening  negligent  person 
alone  is  responsible."  Shearman  &  Redfield  on  Negligence,  §  34;  Lane 
V.  Atlantic  Wks.,  Ill  Mass.  136. 

(3)  In  the  present  case  the  defendant  doubtless  was  aware  of  the 
condition  of  the  fence  along  the  Cobb  line,  and  might  have  anticipated 
the  passage  of  cattle  from  his  land  through  it.  But  he  had  no  knowledge 
of  poisoned  grazing  in  the  Cobb  lot,  and,  however  experienced  or  saga- 
cious he  might  have  been,  could  not  have  anticipated  that  some  person 
might  aimlessly  have  scattered  poison  about  upon  the  grass  there.  That 
incident  was  one  so  entirely  out  of  the  range  of  human  experience  that 
he  had  no  occasion  to  take  it  into  his  calculations,  and  the  fault  in- 
volved in  it  as  an  efficient  cause  of  the  death  of  the  heifers  was  so  dis- 
tinct, independent,  and  complete,  that  the  plaintiff's  fault  in  not 
maintaining  the  division  fence  between  him  and  Woodruff  in  a  sufficient 
condition  cannot  be  regarded  as  a  cause  of  it.  The  defendant's  fail- 
ure in  the  maintenance  of  the  fence  did  not  stand  to  it  in  the  relation 
of  causa  causans.  "  '  Cause'  and  '  consequence '  are  correlative  terms. 
One  implies  the  other.  When  an  event  is  followed  in  natural  sequence 
by  a  result  it  is  adapted  to  produce,  or  aid  in  producing,  that  result  is 
a  consequence  of  the  event,  and  the  event  is  the  cause  of  the  result." 
Monroe  v.  Hartford  St.  Ry.  Co.,  76  Conn.  201,  207,  56  Atl.  498,  501. 
The  natural  sequence  of  consequences  flowing  from  the  escape  of  the 
cattle  from  their  pasture  was  effectually  broken,  and  a  new,  distinct, 
and  independent  cause  productive  of  their  death  introduced  into  the 
situation  when  the  poisoned  grazing  was  encountered. 

There  is  error,  the  judgment  is  reversed,  and  the  cause  remanded, 
for  the  rendition  of  judgment  for  the  defendant. 


,aJ^  «^^u>U<<'^.  t^f^^/ 


II 


SECT.  III.]  Mcdonald  v.  snelling.  201 

& 

McDonald  t.  snelling. 

Supreme  Judicial  Court  of  Massachusetts,  1867. 

[Reported  14  All.  290.] 

Tort.    The  declaration  was  as  follows: 

"And  the  plaintiff  says  that  he  was  possessed  and  the  owner  of  a 
certain  sleigh,  and  a  certain  horse  which  was  harnessed  to  said  sleigh, 
and  the  plaintiff  was  sitting  and  riding  in  .said  sleigh  so  harnessed,  in 
a  certain  highway  called  Eliot  Street,  in  said  Boston,  into  and  across 
Tremont  Street ;  and  one  Thomas  Baker  on  the  same  day  was  possessed 
of  a  certain  sleigh  and  also  of  a  certain  horse  drawing  the  same  through 
and  along  said  Tremont  Street  towards  and  near  said  Eliot  Street  in 
said  Boston.  And  whereas  then  on  the  same  day  the  defendant  was 
possessed  of  a  certain  sled  or  sleigh,  and  also  of  certain  horses  drawing 
the  same  through  and  along  said  Tremont  Street,  and  the  said  defend- 
ant then  and  there,  by  a  certain  servant  of  him  the  said  defendant, 
had  the  care,  government,  and  direction  of  the  said  sled  or  sleigh  of  the 
said  defendant  and  defendant's  said  horses,  yet  the  said  defendant,  not 
minding  or  regarding  his  duty  in  this  behalf,  then  and  there  by  his 
said  servant  so  negligently  and  unskillfully  managed  and  behaved  him- 
self in  this  behalf,  and  so  ignorantly,  carelessly,  and  negligently  drove 
and  managed,  guided  and  governed  his  said  sled  or  sleigh  and  horses, 
that  the  said  sleigh  or  sled  of  the  said  defendant,  for  want  of  good  and 
sufficient  care  and  management  thereof,  and  of  the  horses  then  and  there 
drawing  the  same  as  aforesaid,  then  and  there  struck  against  the  said 
sleigh  of  the  said  Baker  with  such  force  and  violence  that  the  sleigh  of 
the  said  Baker,  wherein  he  was  then  sitting  and  riding  as  aforesaid, 
was  broken  to  pieces,  by  means  whereof  the  said  horse  of  the  said 
Baker  was  put  to  fright  and  ran  wath  great  violence,  threw  out  said 
Baker,  and  escaping  from  him  ran  through  and  along  said  Tremont 
Street  to  said  Eliot  Street  and  into  said  Eliot  Street,  and  upon, 
against,  and  over  the  plaintiff,  his  said  sleigh  and  horse,  with  such  force 
and  violence  that  the  plaintiff's  said  sleigh  wherein  he  was  then  and 
there  sitting  and  riding  as  aforesaid  was  thereby  broken  to  pieces  and 
destroyed,  and  the  plaintiff  thrown  with  great  violence  from  and  out 
of  his  said  sleigh,  and  his  collarbone  broken,  and  otherwise  greatly 
injured  and  bruised,  and  his  life  endangered,  and  the  plaintiff's  said 
horse  was  greatly  damaged  and  spoiled.  And  the  plaintiff  used  due 
care,  and  said  Baker,  his  agents  and  servants,  used  due  care,  but  said 
defendant,  his  agents  and  servants,  did  not  use  due  care." 

The  defendant  demurred  to  this  declaration,  assigning  as  causes  of 
demurrer  that  there  is  no  averment  in  the  declaration  that  the  injury 
to  the  plaintiff  occurred  by  reason  of  or  by  means  of  the  negligence 
of  the  defendant;  and  that  it  does  not  appear  from  the  averments  of 


202  Mcdonald  v.  snelling.  [chap.  iii. 

the  declaration  that  the  alleged  negligence  of  the  defendant  was  the 
proximate  cause  of  the  injury  to  the  plaintiff,  sufficient  in  law  to  render 
the  defendant  liable  in  damages. 

This  demurrer  was  overruled  in  the  Superior  Court,  and  judgment 
ordered  for  the  plaintiff;  and  the  defendant  appealed  to  this  court. 

Foster,  J.  The  question  raised  by  this  demurrer  is,  whether  the 
injury  received  by  the  plaintiff  was  so  remote  from  the  negligent  act 
of  the  defendant  that  the  action  cannot  be  sustained,  although  the 
plaintiff  was  injured  without  his  own  fault,  and  would  not  have  been 
injured  but  for  the  fault  of  the  defendant.  How  far  at  common  law  is 
one  guilty  of  negligence  responsible  in  damages  for  the  consequences 
resulting  from  his  neglect? 

If  the  present  action  had  been  brought  against  a  town,  under  cir- 
cumstances similar  to  those  disclosed  in  this  declaration,  Marble  v. 
Worcester,  4  Gray,  395,  would  be  a  decisive  authority  in  favor  of  the 
defendant.  The  liability  for  damages  caused  by  defects  in  highways 
is  limited  to  cases  where  the  defect  is  the  direct  and  immediate  cause  of 
the  injury.  Jenks  v.  Wilbraham,  11  Gray,  142.  But  this  statute 
liability  is  more  narrowly  restricted  than  the  rule  in  actions  at  common 
law  for  damages  caused  by  negligence,  in  which  it  is  perfectly  well 
settled  that  the  contributory  negligence  of  a  third  party  is  no  defense, 
where  the  defendant  has  also  been  guilty  of  negligence  without  which 
the  damage  would  not  have  been  sustained.  Eaton  v.  Boston  &  Lowell 
Railroad,  11  Allen,  500.  The  extent  of  the  defendant's  responsibility 
cannot  therefore  be  conclusively  determined  by  the  rule  of  Marble 
v.  Worcester,  because  the  limits  of  liability  under  the  statute  as  to  de- 
fects in  public  ways  and  at  common  law  for  negligence  are  not  identical. 
These  cases  against  towns  can  be  reconciled  with  the  general  principles 
of  the  law  only  by  the  consideration  that  they  depend  exclusively 
on  a  statute  provision,  within  the  terms  of  which  they  are  strictly  con- 
fined. 

Opinions  upon  questions  of  marine  insurance  are  frequently  quoted 
to  illustrate  the  meaning  of  the  maxim,  causa  jiroxima  noti  remota 
sprcfatur.  The  exigencies  of  the  present  decision  do  not  require  an 
elaborate  examination  of  the  doctrine  in  its  application  to  the  law 
of  insurance;  but  a  few  observations  may  be  useful.  Where  the  im- 
mediate cause  of  loss  is  a  peril  insured  against,  the  underwriters  are  not 
exonerated  by  the  fact  that  its  original  cause  was  something  not  covered 
by  the  policy.  They  are  liable  if  the  loss  ends  in  a  peril  insured  against, 
although  it  began  in  some  other  cause.  Thus,  a  loss  arising  immediately 
from  a  peril  of  the  sea,  l)ut  remotely  from  the  negligence  of  the  master, 
is  protected  by  the  policy ;  but  it  by  no  means  follows  that,  in  an  action 
brought  against  the  owner  or  master  for  such  negligence,  the  con- 
sequent loss  of  the  cargo  could  not  be  included  in  the  measure  of  dam- 
ages. Redman  v.  Wilson,  14  M.  &  W.  476.  On  the  contrary,  where  a 
master  unnecessarily  deviated  from  his  voyage,  and  during  the  devia- 


SECT.  III.]  Mcdonald  v.  snelling.  203 

tion  a  cargo  of  lime  was  wet  by  a  tempest,  and  the  bark  was  thereby 
set  on  fire  and  consumed,  the  owner  was  held  liable  for  the  fault  of 
his  agent  the  master,  and  the  deviation  was  deemed  to  be  sufficiently 
the  proximate  cause  of  the  loss  of  the  cargo.  Da\as  v.  Garrett,  6  Bing. 
716.  In  a  recent  insurance  cause,  one  learned  judge,  Willes,  J.,  said: 
"  The  ordinary  rule  of  assurance  law  is,  that  you  are  to  look  to  the  proxi- 
mate and  immediately  operating  cause,  and  to  that  only ; "  and  another, 
Erie,  C.  J.,  said:  "The  words  are  to  be  construed  with  reference  to  the 
known  principle  pervading  insurance  law,  causa  proxima  non  remota 
spectatur;  the  loss  must  be  connected  with  the  supposed  cause  of  it, 
and  in  the  relation  of  cause  and  effect,  speaking  according  to  common 
parlance."  lonides  v.  Universal  Ins.  Co.,  8  Law  Times  (N.  S.)  705. 
Marsden  v.  City  and  County  Ass.  Co.,  Law  Rep.  1  C.  P.  232.  But  in 
an  action  for  damages  for  refusing  to  receive  a  ship  into  a  dock,  the 
rule  was  said  to  be  "that  the  damage  must  be  proximate  (not  im- 
mediate) and  fairly  and  reasonably  connected  with  the  breach  of  con- 
tract or  wrong.  As  to  what  is  so,  different  minds  will  differ."  Wilson 
V.  Newport  Dock  Co.,  Law  Rep.  1  Exch.  186. 

Perhaps  the  truth  may  be  that  a  maxim  couched  in  terms  so  general 
as  to  be  necessarily  somewhat  indefinite  has  been  indiscriminately 
applied  to  different  classes  of  cases  in  different  senses,  or  at  least 
without  exactness  and  precision;  and  that  this  is  the  real  explanation 
of  the  circumstance  that  causa  proxima,  in  suits  for  damages  at  com- 
mon law,  extends  to  the  natural  and  probable  consequences  of  a  breach 
of  contract  or  tort ;  while  in  insurance  cases  and  actions  on  our  highway 
statute  it  is  limited  to  the  immediately  operating  cause  of  the  loss  or 
damage.  If  this  be  so,  the  frequent  reference  to  the  maxim  in  cases 
like  the  present  is  not  particularly  useful,  and  certainly  not  conducive 
either  to  an  accurate  statement  of  principles  or  to  uniform  and  intelli- 
gible results.  In  insurance  causes  the  maxim  is  resorted  to  as  furnishing 
a  rule  by  which  to  determine  whether  a  loss  is  attributable  to  a  peril 
against  which  the  contract  has  promised  indemnity,  and  its  application 
charges  as  frequently  as  it  exonerates  the  underwriter.  Peters  v. 
Warren  Insurance  Co.,  3  Sumner,  389;  S.  C.  14  Pet.  99.  Hillier  v. 
Allegheny  County  Ins.  Co.,  3  Penn.  State  R.  470.  The  limits  of  lia- 
bility and  the  definition  of  proximate  cause  in  the  law  of  insurance  are 
too  narrow  and  restricted  to  be  applied  to  the  present  case. 

Definitions  and  illustrations  drawn  from  other  branches  of  the  law 
may  afford  instructive  analogies,  but  for  controlling  authorities  v.e  are 
to  look  to  adjudications  in  actions  of  a  similar  nature  to  the  present,  and 
arising  upon  a  state  of  facts  more  closely  resembling  those  now  under 
consideration.  Here  the  defendant  is  alleged  to  have  been  guilty  of 
culpable  negligence.  And  his  liability  depends,  not  upon  any  contract 
or  statute  obligation,  but  upon  the  duty  of  due  care  which  every  man 
owes  to  the  community,  expressed  by  the  maxim  sic  utere  tuo  vt  alienum 
non  loedas. 


204  Mcdonald  v.  snelling.  [chap.  hi. 

^Yhe^e  a  right  or  duty  is  created  wholly  by  contract,  it  can  only  be 
enforced  between  the  contracting  parties.  But  where  the  defendant  has 
violated  a  duty  imposed  upon  him  by  the  common  law,  it  seems  just 
and  reasonable  that  he  should  be  held  liable  to  every  person  injured, 
whose  injury  is  the  natural  and  prol)able  consequence  of  the  miscon- 
duct. In  our  opinion  this  is  the  well-established  and  ancient  doctrine 
of  the  common  law,  and  such  a  liability  extends  to  consequential  in- 
juries, by  whomsoever  sustained,  so  long  as  they  are  of  a  character 
likely  to  follow,  and  which  might  reasonably  have  been  anticipated  as 
the  natural  and  probable  result  under  ordinary  circumstances  of  the 
wrongful  act.  The  damage  is  not  too  remote  if  according  to  the  usual 
experience  of  mankind  the  result  was  to  be  expected.  This  is  not  an 
im.practicable  or  unlimited  sphere  of  accountability,  extending  in- 
definitely to  all  possible  contingent  consequences.  An  action  can  be 
maintained  only  ^vhere  there  is  shown  to  be,  first,  a  misfeasance  or 
negligence  in  some  particular  as  to  which  there  was  a  duty  towards 
the  party  injured  or  the  community  generally ;  and,  secondly,  where  it 
is  apparent  that  the  harm  to  the  person  or  property  of  another  which 
has  actually  ensued  was  reasonably  likely  to  ensue  from  the  act  or 
omission  complained  of. 

Two  recent  cases,  both  much  considered,  sound  and  consistent  wath 
each  other,  well  illustrate  the  true  rule  of  lav,'.  A  druggist  who  care- 
lessly labeled  belladonna,  a  deadly  poison,  as  extract  of  dandelion, 
a  harmless  medicine,  and  sent  it  so  labeled  into  the  market,  was  held, 
by  the  Court  of  Appeals  in  New  York,  liable  in  damages,  after  it  had 
passed  through  several  intervening  hands,  had  been  purchased  of  an 
apothecary,  and  administered  by  the  plaintiff  to  his  wife,  who  was 
injured  by  using  it  as  a  medicine  in  consequence  of  the  false  label. 
Thomas  v.  Winchester,  2  Selden,  397.  Here  the  dealer  owed  to  the 
public  a  duty  not  to  expose  human  life  to  danger  by  falsely  labeling 
a  noxious  drug  and  selling  it  in  the  market  as  a  harmless  article.  To 
do  so  was  culpable  and  actionable  negligence  towards  all  likely  to  be, 
and  who  in  fact  were,  injured  by  the  mistake.  And  the  injury  that 
did  follow  was  the  natural  and  easily  foreseen  result  of  the  carelessness. 

On  the  other  hand,  where  one  article,  black  oxide  of  manganese,  in 
itself  harmless,  which  became  dangerous  only  by  being  combined 
with  another,  was  sold  by  mistake,  the  plaintiff  who  purchased  it  of  a 
third  party  and  mixed  it  with  another  substance,  the  combination 
with  which  caused  a  dangerous  explosion,  was  held  by  this  court  to 
have  no  right  of  action  against  the  original  vendor  who  made  the  mis- 
take, for  the  damages  caused  by  the  explosion.  Davidson  v.  Nichols, 
11  Allen,  514.  The  mistake  in  regard  to  an  article  in  its  own  nature 
ordinarily  harmless,  in  the  absence  of  contract  or  false  representation, 
was  not  a  violation  of  any  public  duty,  or  negligence  of  such  a  WTong- 
ful  and  illegal  character  as  to  render  the  party  who  made  it  liable 
for  its  consequences  to  third  persons.     Nor  was  it  a  natural  and  prob- 


SECT.  III.]  McDonald  v.  snelling.  205 

able  consequence  of  such  a  mistake  that  this  ordinarily  innocuous 
substance  would  be  mixed  with  another  chemical  agent,  become  ex- 
plosive by  the  combination,  and  a  third  party  be  thereby  injured. 

It  is  clear  from  numerous  authorities  that  the  mere  circumstance 
that  there  have  intervened,  between  the  wrongful  cause  and  the 
injurious  consequence,  acts  produced  by  the  volition  of  animals  or 
of  human  beings,  does  not  necessarily  make  the  result  so  remote  that 
no  action  can  be  maintained.  The  test  is  to  be  found,  not  in  the 
number  of  intervening  events  or  agents,  but  in  their  character,  and  in 
the  natural  and  probable  connection  between  the  wrong  done  and  the 
injurious  consequence.  So  long  as  it  affirmatively  appears  that  the 
mischief  is  attributable  to  the  negligence  as  a  result  which  might 
reasonably  have  been  foreseen  as  probable,  the  legal  liability  con- 
tinues. 

There  can  be  no  doubt  that  the  negligent  management  of  horses  in 
the  public  street  of  a  city  is  so  far  a  culpable  act  that  any  party  in- 
jured thereby  is  entitled  to  redress.  Whoever  drives  a  horse  in  a 
thoroughfare  owes  the  duty  of  due  care  to  the  community,  or  to  all 
persons  whom  his  negligence  may  expose  to  injury.  Nor  is  it  open 
to  question  that  the  master  in  such  a  case  is  responsible  for  the  mis- 
conduct of  his  servant. 

Applying  these  principles  more  closely  to  the  facts  set  forth  in  this 
declaration  and  admitted  by  the  demurrer,  we  find  that  by  careless 
dri\'ing  the  defendant's  sled  was  caused  to  strike  against  the  sleigh 
of  one  Baker  with  such  A-iolence  as  to  break  it  in  pieces,  throwing  Baker 
out,  frightening  his  horse,  and  causing  the  animal  to  escape  from  the 
control  of  its  driver  and  to  run  violently  along  Tremont  Street  round  a 
corner,  near  by,  into  Eliot  Street,  where  he  ran  over  the  plaintiff 
and  liis  sleigh,  breaking  that  in  pieces  and  dashing  him  on  the  ground 
Upon  this  statement,  indisputably  the  defendant  would  be  liable  for 
the  injuries  received  by  Baker  and  his  horse  and  sleigh.  Why  is  he 
not  also  responsible  for  the  mischief  done  by  Baker's  horse  in  its 
flight?  If  he  had  struck  that  animal  with  a  whip  and  so  made  it  nan 
away,  would  he  not  be  liable  for  an  injury  like  the  present?  By  the 
fault  and  direct  agency  of  his  servant  the  defendant  started  the  horse 
in  uncontrollable  flight  through  the  streets.  As  a  natural  conse- 
quence, it  was  obviously  probable  that  the  animal  might  run  over 
and  injure  persons  traveling  in  the  vicinity.  Every  one  can  plainly 
see  that  the  accident  to  the  plaintiff  was  one  very  likely  to  ensue  from 
the  careless  act.  We  are  not  therefore  dealing  wath  remote  or  unex- 
pected consequences,  not  easily  foreseen  nor  ordinarily  likely  to  occur, 
and  the  plaintiff's  case  falls  clearly  within  the  rule  already  stated  as  to 
the  liability  of  one  guilty  of  negligence  for  the  consequential  damages 
resulting  therefrom. 

These  views  are  fortified  by  numerous  decisions,  to  a  few  of  which 
it  may  be  expedient  to  refer.    It  was  recently  held  by  this  court  that 


206  Mcdonald  v.  snelling.  [chap.  hi. 

when  a  horse  was  turned  loose  on  the  highway,  and  there  kicked  a  colt 
running  by  the  side  of  its  dam,  the  owner  of  the  horse  was  liable  for 
that  damage.  Barnes  v.  Chapin,  4  Allen,  444.  We  cannot  distin- 
guish between  the  different  ways  of  letting  a  horse  loose  upon  the  street; 
whether  by  lea\ang  him  there  untied,  or  leaving  a  gate  open,  or,  as 
in  the  present  case,  by  driving  against  him,  and  thus  causing  him  to 
run  away.  In  Powell  v.  Deveney,  3  Cush.  300,  the  defendant's  servant 
left  a  truck  standing  beside  a  sidewalk  in  a  public  street,  with  the  shafts 
shored  up  by  a  plank  in  the  usual  way.  Another  truckman  temporarily 
left  his  loaded  truck  directly  opposite  on  the  other  side  of  the  same 
street,  after  which  a  third  truckman  tried  to  drive  his  truck  between 
the  two  others.  In  attempting  to  do  so  with  due  care,  he  hit  the  de- 
fendant's truck  in  such  a  manner  as  to  whirl  its  shafts  round  on  the 
sidewalk  so  that  they  struck  the  plaintiff  who  was  walking  by,  and  broke 
her  leg.  For  this  injury  she  was  allowed  to  maintain  her  action,  the 
only  fault  imputable  to  the  defendant  being  the  careless  position  in 
which  the  truck  was  left  by  his  servant  on  the  street,  which  was  treated 
as  the  sole  cause  of  the  breaking  of  tlie  plaintiff's  leg,  and  in  legal 
contemplation  sufficiently  proximate  to  render  the  defendant  respon- 
sible. See  also  Powell  v.  Salisbury,  2  Yo.  &  Jer.  391;  Vandenburg 
V.  Truax,  4  Denio,  464;  Rigby  v.  Hewitt,  5  Exch.  240;  Greenland  v. 
Chaplin,  lb.  245;  Morrison  v.  Davis,  20  Penn.  State  R.  175;  Lynch  v. 
Nurdin,  1  Q.  B.  29;  Thomas  v.  Winchester,  ubi  supra,  and  cases  there 
cited.  When  a  horse  strayed  on  the  highway  and  there  viciously  and 
violently  kicked  a  child,  the  owner  was  held  not  liable  in  the  absence 
of  evidence  that  he  knew  the  animal  was  in  the  habit  of  kicking;  because 
the  act  was  not  one  which  it  was  in  the  ordinary  course  of  nature  for  a 
horse  of  common  temper  and  disposition  to  do.  Cox  v.  Burbidge,  32 
Law  Journ.  (N.  S.)  C.  P.  89.  See  also  Cooke  v.  Waring,  lb.  Exch.  262. 
But  two  years  later  the  same  court  held  a  defendant  liable  who  had 
negligently  left  insecure  a  gate  which  he  was  bound  to  repair,  in  con- 
sequence of  which  his  horse  strayed  into  the  field  of  an  adjoining 
proprietor  and  there  kicked  another  horse;  because  this  was  the  natural 
consequence  of  two  horses  meeting  under  such  circumstances,  and  such 
an  injury  produced  by  such  an  animal  was  deemed  to  be  the  proximate 
consequence  of  the  defendant's  negligence.  Lee  v.  RHey,  34  Law  Journ. 
(N.  S.)  C.  P.  212.  See  also  Reed  v.  Edwards,  lb.  C.  P.  31.  In  a  case 
where  the  defendant  left  on  the  street  exposed  for  sale  a  machine 
for  crushing  oil  cake  between  rollers,  into  the  cogs  of  which  a  little  child 
put  his  fingers  while  another  boy  turned  the  handle,  and  the  fingers 
were  crushed,  the  court  held  that  the  act  was  too  remote;  and  Bram- 
well,  B.,  said:  "The  defendant  was  no  more  liable  than  if  he  had  ex- 
posed goods  colored  with  a  poisonous  plant,  and  the  child  had  sucked 
them;"  but  the  same  Baron  added,  "Further  I  can  see  no  evidence 
of  negligence  in  him.  If  his  act  in  exposing  this  machine  was  negligence, 
vnW  his  act  in  exposing  it  again  be  called  wilfully  mischievous?     If 


SECT.  III.]  Mcdonald  v.  snelling.  207 

that  could  not  be  said,  then  it  is  not  negligence,  for  between  negligence 
and  wilful  mischief  there  is  no  difference  but  of  degree."  Mangan 
V.  Atherton,  Law  Rep.  1  Exch.  239.  This  case  has  no  tendency  and 
indicates  no  intention  to  overrule  Dixon  v.  Bell,  5  M.  &  S.  198,  in  which, 
an  injury  having  been  received  from  a  loaded  gun,  Lord  Ellenborough 
held  the  owner  liable  for  lea\nng  a  dangerous  instrument  in  a  state 
capable  of  doing  mischief,  although  the  mischief  was  caused  l)y  a  girl 
taking  it  up,  pointing  it  at  a  child,  and  snapping  the  trigger  after  the 
priming  had  been  withdrawn. 

It  may  not  always  be  easy  to  determine  whether  any  particular 
act  of  negligence  is  of  such  a  character  as  to  render  the  party  guilty  of 
it  liable  to  third  persons;  or  whether  the  ensuing  consequences  are 
so  far  natural  and  probable  as  to  impose  a  liability  for  them  in  damages. 
Cases  may  be  put,  falling  very  near  the  di\ading  line,  and  no  rule  can 
be  laid  down  in  advance,  which  will  determine  all  with  precision. 
But  the  difficulty  of  applying  a  principle  is  a  poor  argument  against  its 
validity,  unless  one  more  satisfactory  can  be  proposed  in  its  stead. 
There  may  be  discrepancies  and  want  of  uniformity  in  the  application 
of  the  principle  to  the  facts  of  particular  cases,  but  all  the  authorities 
cited  concur  in  the  support  of  the  doctrine  we  have  stated,  and  agree 
as  to  the  rule  by  which  the  extent  of  liability  for  consequential  damages 
resulting  from  negligence  ought  to  be  determined. 

In  the  opinion  of  a  majority  of  the  court,  the  demurrer  in  the  pres- 
ent case  must  be  overruled,  because  on  the  statements  of  the  declara- 
tion the  plaintiff's  injury  does  not  appear  to  be  so  remote  from  the  neg- 
ligence of  the  defendant  as  to  exonerate  the  latter  from  liability.  When 
such  a  question  is  raised  by  the  pleadings,  or  arises  upon  agreed  or  undis- 
puted facts,  it  is  matter  of  law;  but  where  the  evidence  is  contradictory, 
or  the  inferences  to  be  drawn  from  it  are  uncertain,  the  jury  must  de- 
termine by  a  verdict  whether  the  facts  fall  within  the  rule  of  law 
to  be  laid  down  on  the  subject,  Wilson  v.  Newport  Dock  Co.,  uhi 
supra} 

Demurrer  overruled. 

1  See  also  Williams  -c.  San  Francisco  &  N.  Ry.,  6  Cal.  App.  715,  93  Pac.  122; 
Boone  County  v.  Mutchler,  137  Ind.  140,  36  N.  E.  534  ;  Lake  v.  Milliken,  62  Me.  240; 
Pennsylvania  Steel  Co.  v.  Wilkinson,  107  Md.  574,  69  Atl.  412  ;  Rompillon  v.  Abbott, 
49  Hun,  607,  1  N.  Y.  Supp.  662;  Burrell  v.  Uncapher,  117  Pa.  353,  11  Atl.  619; 
Quinlan  v.  Philadelphia,  205  Pa.  309,  54  Atl.  1026;  Shippers'  C.  &  W.  Co.  t.  David- 
son, 35  Tex.  Civ.  App.  558,  80  S.  W.  1032;  Snyder  v.  Philadelphia  Co.,  54  W.  Va. 
149,  46  S.  E.  366.  — Ed. 


208  BELK   V.  PEOPLE.  [CHAP.  Ill 


BELK  V.   PEOPLE. 
Supreme  Court  of  Illinois.    1888. 

[Reported  125  ///.  584.] 

Shope,  J.  The  plaintiffs  iu  error,  Jolin  Belk,  John  Hill,  and  George 
Williams,  with  George  Belk,  were  jointly  indicted,  in  the  Jo-Daviess 
Circuit  Court,  for  the  murder  of  Ann  Reed,  the  indictment  charging  in 
the  various  counts,  in  varying  forms,  that  the  murder  was  committed 
by  the  defendants,  b}-  wilfully,  recklessly,  negligently,  wrongfulU'  and 
feloniously  driving  a  team  of  horses  hitched  to  a  wagon,  upon  and 
against  a  wagon  in  which  the  deceased  was  riding,  thereb}-  causing  the 
horses  attached  to  the  wagon  in  which  she  was  so  riding,  to  run  away, 
thereby  throwing  said  Ann  Reed  upon  the  ground,  whereby  she  re- 
ceived wounds  and  injuries  from  which  she  died  the  following  day.  A 
trial  resulted  in  an  acquittal  of  said  George  Belk,  and  a  verdict  of 
guilty  of  manslaughter  as  to  plaintiffs  in  error,  and  fixing  their  punish- 
ment at  confinement  in  the  penitentiary  at  one  year  each.  Motions  for 
new  trial  and  in  arrest  were  severally  overruled,  and  sentence  pro- 
nounced bj'  the  court  upon  tlie  verdict. 

The  facts  immediately  connected  with  the  killing  of  Mrs.  Reed,  in 
reference  to  which  there  is  little  or  no  controversy,  are  as  follows  :  On 
the  5th  day  of  July,  1886,  a  celebration  of  the  fourth  of  July  was  held 
in  a  grove  about  a  half  mile  from  the  village  of  Elizabeth,  in  Jo-Daviess 
Count}'.  The  grove  was  a  quarter  of  a  mile  from  the  public  highway, 
and  was  reached  through  a  lane  about  one  rod  wide  and  fifty  rods  long, 
extending  from  the  road  into  the  fields  in  which  the  grove  was  situated. 
This  lane,  ordinarily  closed  by  gates  at  each  end,  was  on  this  day 
thrown  open  and  used  by  the  public.  About  six  rods  from  the  gate 
nearest  the  grove  was  a  hollow  or  depression  crossing  the  lane,  the 
descent  into  which,  b}'  the  road,  was  quite  steep,  and  at  this  point, 
owing  to  the  unevenness  of  the  surface  of  the  land,  a  team  could  not 
be  driven  aside  to  permit  another  to  pass.  About  six  o'clock  p.  m. 
the  deceased,  with  others,  started  homeward,  through  this  lane,  in 
a  spring  wagon  or  "hack"  drawn  bv  two  horses,  driven  by  her  son 
Richard.  About  the  same  time,  plaintiffs  in  error,  in  company  with 
George  Belk,  also  started  from  the  grove,  in  a  like  vehicle,  also  drawn 
by  two  horses  driven  by  the  defendant  John  Belk.  At  the  time  the 
latter  entered  the  narrow  lane  tlie  former  was  some  six  rods  in  ad- 
vance, and  in  plain  view.  About  the  time  of  so  entering  the  lane,  the 
horses  driven  by  Belk  began  to  run,  and  ran  into  and  against  the 
wagon  in  which  the  deceased  was  riding,  breaking  the  end-gata  and 
the  back  of  the  seat.  The  collision  occurred  just  as  the  forward  con- 
veyance was  descending  the  declivit}'  into  the  hollow  mentioned.     The 


SECT.  III.]     EVERHARDT   V.  GLASCO   MUTUAL   TELEPHONE   ASSOC.      209 

result  was  that  the  horses  attached  to  the  vehicle  in  which  Mrs.  Reed 
was  riding  became  unmanageable,  and  ran  away,  whereby  she  was 
thrown  violently  to  the  ground,  and  was  injured  so  that  she  died  the 
next  day. 

Some  question  is  made  whether  the  collision  was  the  proximate 
cause  of  the  team  running  away,  and  of  the  injur}'  and  death  of  Mrs. 
Reed  ;  but  it  is  enough  to  say,  the  evidence  was  sufBcient  upon  which 
to  base  the  finding  of  the  jurj-  in  that  respect.  The  question  was  sub- 
mitted under  proper  instructions,  and  there  is  no  ground  for  disturbing 
the  verdict  for  that  reason.  There  was  direct  causal  connection 
between  the  collision  and  the  death  of  the  deceased.  Between  the 
acts  of  omission  or  commission  of  the  defendants,  by  which  it  is 
alleged  the  collision  occurred,  and  the  injur}-  of  the  deceased,  there 
was  not  an  interposition  of  a  human  will  acting  independentlj'  of  the 
defendants,  or  an}'  extraordinary  natural  phenomena,  to  break  the 
causal  connection.  It  may  be  fairly  said  that  what  followed  the  collid- 
ing of  the  defendants'  team  with  the  wagon  in  which  the  deceased  was 
riding,  was  the  natural  and  probable  effect  of  the  collision,  and  the 
collision  was  in  consequence  of  the  manner  in  which  the  team  of  the  de- 
fendants was  controlled.  It  can  make  no  difference  whether  the  driver 
of  the  team  after  which  the  deceased  was  riding,  was  guilty  of  negli- 
gence in  not  controlling  or  failing  to  control  his  team  after  the  colli- 
sion. It  may  be  that  persons  standing  by,  or  the  driver,  might,  by  the 
exercise  of  diligence  and  care,  have  checked  the  horses,  and  thereby 
prevented  the  final  catastrophe ;  but  because  they  did  not  do  so,  and 
were  derelict  in  moral  or  even  legal  duty  in  that  regard,  will  not 
release  defendants  from  the  responsibility  of  their  wrongful  act  or 
omission  of  their  legal  duty.  If  the  driver,  instead  of  being  negligent, 
as  is  claimed,  in  controlling  his  team,  had  done  some  act  contributing 
to  the  running  away  of  his  horses,  or  driven  upon  a  bank,  whereby  the 
carriage  had  been  overturned  and  the  deceased  thrown  out,  or  the  like, 
it  might  justly  be  said  that  it  was  the  act  of  the  driver,  and  not  of  the 
defendants,  to  which  the  death  of  the  deceased  was  legally  attributable. 
Wharton  on  Crim.  Law,  341,  et  seq.;  Roscoe  ou  Crim.  Ev.  700,  et  seq. 


EBERHARDT  v.   GLASCO   MUTUAL  TELEPHONE 
ASSOCIATION. 

Supreme  Court  of  Kansas,  1914. 

[Reported  139  Pac.  Rep.  416.] 

West,  J.  (1)  The  plaintiff  sued  for  damages  received  by  being 
thrown  from  a  wagon  in  a  runaway.  Her  husband  was  driving  a  span 
of  mules  on  a  public  highway  when  an  automobile  passed  them  on  the 
south,  frightening  the  mules,  and  they,  leaving  the  traveled  roadway, 


(kir: ....      .  ^....  ..J...^      ,\l 


210     EBERHARDT   V.    GLASCO    MUTUAL    TELEPHONE   ASSOC'  [CHAP.  III. 

veered  to  the  right  and  ran  the  wagon  across  a  pole  or  guy  wire  belong- 
ing to  the  defendant,  throwing  the  plaintiff  out,  and  injuring  her.  The 
pole  was  about  on  the  north  line  of  the  highway,  and  formed  a  part  of 
the  fence,  and  the  guy  wire  extended  from  the  pole  about  4  feet  south- 
east, where  it  was  attached  to  a  rod  anchored  in  the  ground.  The 
road  from  fence  to  fence  is  44  feet  wide,  the  traveled  portion  being 
about  30  feet  wade,  and  on  each  side  between  the  driveway  and  the 
fence  is  an  embankment  not  used  for  travel.  This  embankment  where 
the  injury  occurred  is  only  about  6  inches  higher  than  the  roadway. 
It  was  not  graded  or  smoothed,  but  was  covered  with  grass  and  weeds. 
The  husband  testified  that  the  team  ran  about  100  feet,  and  swung 
to  the  right  and  hit  the  guy  wire  with  the  front  wheel  of  the  wagon; 
that  it  was  4  feet  and  4  inches  to  the  pole  from  where  the  guy  wire 
entered  the  ground,  that  he  could  have  held  the  team  had  it  not  been 
for  this  obstruction,  and  would  have  had  them  under  control  in  a  little 
while.  There  was  testimony  that  the  team  had  tried  to  run  away  be- 
fore; also  that  they  ran  about  20  rods  before  the  accident  occurred. 
It  is  claimed  that  the  defendant  was  negligent  in  placing  and  main- 
taining the  pole  and  wire  at  the  place  and  in  the  manner  indicated,  and 
that  they  constituted  a  nuisance,  and  were  the  proximate  cause  of  the 
injury.  The  court  sustained  a  demurrer  to  the  plaintiff's  evidence 
and,  hai-ing  refused  a  new  trial,  the  plaintiflF  appeals. 

The  defendant  denies  that  the  pole  and  \Are  were  negligently  placed, 
and  that  they  were  the  proximate  cause  of  the  injury.  We  find  no 
authority  for  holding  that  the  location  of  the  pole  practically  on  the 
boundary  line  of  the  highway  could  be  deemed  negligence  on  the  part 
of  the  defendant.  Whether  the  guy  wire  was  so  placed  and  anchored 
as  to  constitute  negligence  is  a  question  on  both  sides  of  which  much 
could  be  said,  but  one  we  do  not  deem  necessary  to  decide.  Unless 
the  guy  wire  was  the  proximate  cause  of  the  injury,  there  can  be  no 
liability,  whether  its  location  were  negligent  or  otherwise. 

(2)  The  question  of  proximate  cause  is  one  frequently  so  near  the 
border  line  as  to  cause  much  perplexity;  but,  generally  speaking,  it 
may  be  said  in  this  State  that  the  proximate  is  the  producing  cause,  not 
the  one  supplying  the  condition,  but  the  one  producing  the  injury. 
The  one  supplying  the  condition  may  be  so  intrinsically  careless  as  to 
amount  practically  to  a  continuing  invitation,  so  to  speak,  for  a  direct 
cause  to  join  in  producing  a  disastrous  result.  But  to  be  such  it  must 
present  a  condition  of  danger  so  manifest  that  the  one  responsible 
must  be  held  to  have  been  negligent  in  furnishing  the  means  for  a  prob- 
able injury.  But  a  condition  which  could  not  reasonably  be  expected 
to  endanger,  and  which,  but  for  some  independent  cause  without  which 
the  injury  would  not  have  occurred,  would  not  have  endangered,  does 
not  ordinarily  amount  to  a  proximate  cause.  It  is  entirely  plain 
that,  had  the  mules  not  become  frightened,  and  had  they  not  also  got 
beyond  the  driver's  control,  the  wire  would  have  had  no  possible  con- 


SECT,  III.]     EBERHARDT    V.    GLASCO   MUTUAL   TELEPHONE   ASSOC.     211 

nection  with  the  most  regrettable  injury.  The  party  placing  the  wire 
4  feet  and  4  inches  from  the  pole  in  the  grassy  embankment  north  of 
the  traveled  portion  of  the  road  cannot  be  held  to  have  foreseen  that 
a  team  might  become  frightened  20  rods  east  thereof  and  run  upon 
the  embankment.  Had  the  automobile  not  passed,  had  it  not  scared  the 
team,  had  they  not  pulled  out  of  the  road  in  spite  of  the  driver's  efforts 
to  keep  them  in  it,  no  harm  would  have  come  from  the  wire,  and  to  hold 
the  company  placing  it  there  liable  would  be  to  charge  it  with  the  duty 
to  foresee  all  these  most  uncommon  and  unlooked  for  conditions. 

While  the  plaintiff  cites  decisions  from  other  States  which  support 
or  tend  to  support  her  position,  attention  is  also  called  to  Street  Ry. 
Co.  V.  Stone,  54  Kan.  83,  37  Pac.  1012,  and  Mosier  v.  Butler  Co., 
82  Kan.  708,  109  Pac.  162.  In  the  Stone  Case  the  horse  took  fright 
at  an  object  for  which  the  city  was  not  responsible,  and  got  beyond  the 
control  of  the  driver,  and  came  in  contact  with  an  obstruction  in  the 
street  which  the  city  had  been  negligent  in  not  removing  or  repairing, 
and  the  city  was  held  liable.  There  the  obstruction  was  in  the  opened 
and  traveled  portion  of  the  street,  and  a  duty  rested  upon  the  city 
to  keep  it  in  a  reasonably  safe  condition  for  travel.  It  is  clear  that  the 
defect  or  obstruction  was  such  as  likely  to  cause  damage.  Hence 
the  facts  are  by  no  means  like  those  involved  here.  In  the  Mosier 
Case  it  was  said  (82  Kan.  709,  109  Pac.  162)  that  the  frightening  of 
the  horse  and  the  defect  in  the  guard  rail  were  related  in  their  opera- 
tion, and  the  injury  would  not  have  resulted  if  the  guard  rail  had  not 
been  defective.  From  the  facts  there  shown,  the  absence  of  a  sufficient 
guard  rail  provided  a  constant  condition  if  not  a  source  of  danger  liable 
and  likely  to  happen  at  any  time. 

The  appellee  cites  many  decisions;  but  we  will  notice  only  those 
which  seem  most  directly  in  point.  In  Railway  Co.  v.  Bailey,  66 
Kan.  115,  71  Pac.  246,  a  horse,  becoming  frightened  at  a  mass  of  escap- 
ing steam,  ran  upon  a  pile  of  sewer  pipe,  overturning  the  buggy,  and 
injuring  the  plaintiff.  In  the  opinion  it  was  said:  "The  proximate 
cause  of  the  injury  —  that  without  which  it  would  not  have  occurred 
—  was  the  frightening  of  the  horse.  This  stood  first  in  the  line  of  causa- 
tion." 66  Kan.  122,  71  Pac.  248.  In  Stephenson  v.  Corder,  71  Kan. 
475,  80  Pac.  938,  69  L.  R.  A.  246,  114  Am.  St.  Rep.  500,  the  defendant's 
team  standing  —  one  of  them  hitched  —  at  a  hitching  rail  became 
frightened  by  a  boy  who,  in  exercising  on  the  hitch  rail,  struck  one  of 
the  horses  on  the  nose  with  his  foot,  causing  them  to  rear  back  and 
break  loose.  They  collided  with  a  buggy,  injuring  the  plaintiff,  who 
sued  the  owner  of  the  team,  alleging  that  he  left  them  standing  in- 
securely hitched.  A  judgment  in  her  favor  was  reversed,  on  the  ground 
that  the  act  of  the  boy  frightening  the  team  was  the  proximate  cause, 
and  that  the  defect  in  the  halter,  if  any,  was  only  a  distinct  cause 
unrelated  in  operation  with  the  producing  cause.  The  definition  of 
proximate  cause  there  approved  (71  Kan.  479,  80  Pac.  938,  69  L.  R.  A. 


212  ISHAM   V.  DOW.  [chap.  III. 

246,  114  Am.  St.  Rep.  500)  was  such  negligence  as^  under  the  circum- 
stances ordinary  prudence  would  have  admonished  the  person  sought 
to  be  charged  that  his  act  or  omission  would  probably  result  in  injury 
to  someone;  the  general  test  being  whether  the  negligence  is  such  that  a 
person  of  ordinary  intelligence  should  have  foreseen  that  an  accident 
was  likely  to  be  produced  thereby.  In  Gas  Co.  v.  Dabney,  79  Kan. 
820,  101  Pac.  488,  it  was  held  that  the  acts  of  the  defendants  did  nothing 
more  than  furnish  the  condition  or  give  rise  to  the  occasion  by  which 
the  injury  was  made  possible,  and  hence  they  were  not  liable.  It 
was  expressly  held  that,  when  the  facts  are  undisputed,  and  the  court 
can  see  that  the  resulting  injury  was  not  probable,  but  remote,  it  is 
its  duty  to  determine  the  question,  and  not  send  it  to  a  jury.  In  Col- 
well  V.  Parker,  81  Kan.  295,  105  Pac.  524,  the  operator  of  a  moving 
picture  show  and  the  manufacturer  and  lessor  of  the  steps  leading  to 
the  entrance  were  sued  for  damages  caused  by  falling  from  the  steps 
for  the  alleged  reason  that  they  were  not  provided  with  railings  or 
guards.  It  was  held  that  the  manufacturer  and  lessor,  even  if  negligent 
in  the  manner  of  construction,  was  not  liable;  such  negligence  being 
remote  and  unrelated  in  its  operation  to  the  direct  proximate  cause, 
and  doing  nothing  more  than  to  furnish  the  condition  or  give  rise  to 
the  occasion  by  which  the  injury  was  made  possible.  The  law  concern- 
ing proximate  cause  was  exhaustively  considered  in  Rodgers  v.  Rail- 
way Co.,  75  Kan.  222,  88  Pac.  885,  10  L.  R.  A.  (N.  S.)  658,  121  Am. 
St.  Rep.  416,  12  Am.  Cas.  441,  and  the  rule  already  indicated  finds 
abundant  support  in  that  decision. 

We  are  compelled  to  hold,  therefore,  that  the  demurrer  to  the  plain- 
tiff's evidence  was  properly  sustained,  and  such  ruling  is 

Affirmed. 

J   \r.  T,  f  Supreme  Court  of  Vermont,  1898. 

^    Ol '  'jJL    {A  Jbi<^>M.      [Reported  70  Vt.  588.] 

RowELL,  J.  Dow,  the  intestate,  a  poor  gunner,  as  he  knew,  with 
eyesight  much  impaired,  knowing  that  the  plaintiff  and  her  children 
were  alone  in  her  husband's  house,  unlawfully,  wantonly,  and  malici- 
ously shot  at  and  wounded  her  husband's  dog,  lying  peaceably  in  close 
proximity  to  the  house  on  the  land  of  a  third  person,  whereupon  the 
dog  sprang  up,  rushed  wildly  and  rapidly  towards  the  house,  entered 
it  through  an  open  door  into  the  room  where  the  plaintiff  was,  ran  \no- 
lently  and  forcibly  against  her,  knocking  her  down  and  injuring  her; 
and  the  question  is,  whether  the  estate  is  liable  for  it. 

The  defendant  says  that  in  order  to  recover  the  plaintiff  must  es- 
tablish two  things,  namely,  negligence  on  the  part  of  Dow,  and  that 


SECT,   III.]  ISHAM  V.    DOW.  213 

her  injury  resulted  proximately  therefrom,  and  that  the  case  shows 
neither,  as  it  does  not  show  that  Dow  owed  her  any  legal  duty,  nor 
that  his  act  was  the  proximate  cause  of  the  injury. 

But  we  cannot  adopt  this  view.  The  intestate  unlawfully,  wantonly, 
and  maliciously  shot  at  the  dog,  intending,  we  will  assume,  to  kill  it, 
but  not  knowing  whether  he  would  or  not,  and  not  knowing  what 
would  happen  if  he  did  not,  and  by  his  wanton  act  the  dog  was  set  wdldly 
in  motion,  and  that  motion,  thus  caused,  continued,  without  the  inter- 
vention of  any  other  agency,  and  without  power  on  his  part  to  control 
it,  until  the  plaintiff's  injury  resulted  therefrom.  In  these  circum- 
stances the  law  treats  the  act  of  the  intestate  as  the  proximate  cause  of 
the  injury,  whether  the  injury  was,  or  could  have  been,  foreseen  or  not, 
or  was  or  not  the  probable  consequence  of  the  act,  for  the  necessary 
relation  of  cause  and  effect  between  the  act  and  the  injury  is  established 
by  the  continuous  and  connected  succession  of  the  intervening  events. 

This  is  the  universal  rule  when  the  injurious  act  is  wanton.  In 
16  Am.  and  Eng.  Ency.  of  Law,  434,  the  true  principle  is  said  to  be, 
that  he  who  does  such  an  act  is  liable  for  all  the  consequences,  however 
remote,  because  the  act  is  quasi  criminal  in  its  character,  and  the  law 
conclusively  presumes  that  all  the  consequences  were  foreseen  and 
intended.  But  it  is  not  necessary  in  this  State,  certainly,  that  the  act 
should  be  wanton  in  order  to  impose  liability  for  all  the  injurious 
consequences.  If  it  is  voluntary  and  not  obligatory  it  is  enough.  In 
Vincent  v.  Stinehour,  7  Vt.,  at  p.  66,  it  is  said  that  for  such  an  act  the 
doer  is  answerable  for  any  injury  that  may  happen  by  reason  thereof, 
whether  by  accident  or  carelessness.  In  Wright  v.  Clark,  50  Vt.  130, 
the  defendant  shot  at  a  fox  that  the  plaintiff's  dog  had  driven  to 
cover,  and  accidentally  hit  the  dog,  and  he  was  held  liable,  because 
the  shooting  at  the  fox  was  voluntary,  and  furnished  no  excuse  for 
hitting  the  dog,  though  he  did  not  intend  to  hit  him.  The  same  rule 
was  applied  at  nisi  prius  without  exception  in  Taylor  v.  Hayes,  63 
Vt.  475,  where  the  defendant  shot  at  a  partridge  and  accidentally  hit 
a  cow.  So  in  Bradley  v.  Andrews,  51  Vt.  530,  the  defendant  voluntarily 
discharged  an  explosive  missile  into  a  crowd  and  hurt  the  plaintiff,  and 
it  was  held  that,  as  the  act  was  voluntary  and  wrongful,  the  defendant 
was  liable,  and  that  his  youth  and  inexperience  did  not  excuse  him. 

The  rule  is  the  same  here  in  negligence  cases,  and  may  be  formulated 
thus:  When  negligence  is  established,  it  imposes  liability  for  all  the 
injurious  consequences  that  flow  therefrom,  whatever  they  are,  until 
the  intervention  of  some  diverting  force  that  makes  the  injury  its  own, 
or  until  the  force  set  in  motion  by  the  negligent  act  has  so  far  spent 
itself  as  to  be  too  small  for  the  law's  notice.  But  in  administering  this 
rule,  care  must  be  taken  to  distinguish  between  what  is  negligence  and 
what  the  liability  for  its  injurious  consequences.  On  the  question  of 
what  is  negligence,  it  is  material  to  consider  what  a  prudent  man  might 
reasonably   have   anticipated;    Init   when   negligence    is   once   estab- 


214  ISHAM    V.    DOW.  [chap.  III. 

Hshed,  that  consideration  is  entirely  immaterial  on  the  question  of  how 
far  that  negligence  imposes  liability.  This  is  all  well  shown  by  Stevens 
V.  Dudley,  56  Vt.  158,  and  Gilson  v.  The  Delaware  &  Hudson  Canal  Co., 
65  Vt.  213.  The  rule  is  the  same  in  England,  as  will  be  seen  by  referring 
to  the  leading  case  of  Smith  v.  The  London  &  South-Western  Railway 
Co.,  L.  R.  6  C.  P.  14,  in  the  Exchequer  Chamber.  In  Sneesby  v.  The 
Lancashire  &  Yorkshire  Railway  Co.,  L.  R.  1  Q.  B.  D.  42„a  herd  of 
plaintiff's  cattle  were  being  driven  along  an  occupation  road  to  some 
fields.  The  road  crossed  a  siding  of  the  defendant's  railway  on  a  level, 
and  when  the  cattle  were  crossing  the  siding  the  defendant's  servants 
negligently  sent  some  trucks  down  the  siding  amongst  them,  which 
separated  them  from  the  drovers  and  so  frightened  them  that  a  few 
rushed  away  from  the  control  of  the  drovers,  fled  along  the  occupation 
road  to  a  garden  some  distance  off,  got  into  the  garden  through  a  defec- 
tive fence,  and  thence  on  to  another  track  of  the  defendant's  railway 
and  were  killed ;  and  the  question  was  whether  their  death  was  not  too 
remote  from  the  negligence  to  impose  liability.  The  court  said  that 
the  result  of  the  negligence  was  twofold :  first,  that  the  trucks  separated 
the  cattle,  and  second,  that  the  cattle  were  frightened  and  became 
infuriated  and  were  driven  to  act  as  they  would  not  have  done  in  their 
natural  state;  that  everything  that  occurred  or  was  done  after  that 
must  be  taken  to  have  occurred  or  been  done  continuously;  and  that 
it  was  no  answer  to  say  that  the  fence  was  imperfect,  for  the  question 
would  have  been  the  same  had  there  been  no  fence  there.  Then  lia- 
bility was  made  to  depend  not  on  the  nearness  of  the  wrongful  act,  but 
on  the  want  of  power  to  divert  or  avert  its  consequences;  and  it  con- 
tinued until  the  first  impulse  spent  itself  in  the  death  of  the  cattle. 
See  Ricker  v.  Freeman,  50  N.  H.  420;  9  Am.  Rep.  267;  Alabama,  etc., 
R.  R.  Co.   V.  Chapman,  80  Ala.  615. 

Ellis  V.  Cleveland,  55  Vt.  358,  is  not  in  conflict  with  the  Vermont 
cases  above  cited,  as  is  supposed,  for  there  there  was  no  casual  connec- 
tion between  the  wrongful  act  and  the  injury  complained  of,  and  so 
there  could  be  no  recovery.  As  illustrative  of  non-liability  for  damage 
flowing  from  an  intermediate  and  independent  cause  operating  between 
the  wrongful  act  and  the  injury,  see  Holmes  v.  Fuller,  68  Vt.  207. 

Ryan  v.  The  New  York  Central  R.  R.  Co.,  35  N.  Y.  210,  is  relied  on 
by  the  defendant.  The  Pennsylvania  R.  R.  Co.  v.  Kerr,  62  Pa.  St.  353, 
is  a  similar  case.  It  is  said  in  Milwaukee,  etc.,  R.  R.  Co.  v.  Kellogg, 
94  U.  S.,  at  p.  474,  that  these  cases  have  been  much  criticised;  that  if 
they  were  intended  to  hold  that  when  a  building  has  been  negligently 
set  on  fire,  and  a  second  building  is  fired  from  the  first,  it  is  a  conclu- 
sion of  law  that  the  owner  of  the  second  has  no  remedy  against  the 
negligent  wrongdoer,  they  have  not  been  accepted  as  authority  for 
;such  a  doctrine  even  in  the  State  where  they  were  made,  and  are  in 
•conflict  with  numerous  cases  in  other  jurisdictions.  Judge  Redfield 
says  in  13  Am.  Law  Reg.  N.  S.  16,  that  these  cases  have  not  been  coun- 


SECT.  III.]  TOWALIGER   FALLS    POWER    CO.   V.    SIMS.  215 

tenanced  by  the  decisions  in  other  States.  And  Judge  Cooley  says 
that  a  different  view  prevails  in  England  and  most  of  the  American 
States;  that  the  negligent  fire  is  regarded  as  a  unity;  that  it  reaches 
the  last  building  as  a  direct  and  proximate  result  of  the  original  neg- 
ligence, just  as  a  rolling  stone  put  in  motion  down  a  hill,  injuring  several 
persons  in  succession,  inflicts  the  last  injury  as  a  proximate  result  of 
the  original  force  as  directly  as  it  does  the  first,  though  if  it  had  been 
stopped  on  the  way  and  started  again  by  another  person,  a  new  cause 
would  thus  have  intervened,  back  of  which  any  subsequent  injury  could 
not  be  traced;  that  proximity  of  cause  has  no  necessary  connection 
with  contiguity  of  space  nor  nearness  of  time.  Cooley  on  Torts 
(1st  ed.),  76. 

Judgment  reversed  and  cause  remanded. 


TOWALIGER   FALLS   POWER   CO.    v.    SIMS. 
Court  of  Appeals,  Georgia,  1909. 

[Reported  6  Ga.  App.  749.] 

Powell,  J.  Sims  sued  the  Towaliger  Falls  Paper  Company,  al- 
leging that  during  the  year  1906  he  was  a  tenant  residing  on  certain 
lands  in  Monroe  County,  that  the  defendant  built  a  high  dam  across 
the  Towaliger  River,  some  distance  below  his  residence,  and  backed 
a  large  body  of  water  on  and  over  a  great  area  of  land  near  his  home; 
that  the  land  so  submerged  was  covered  with  trees  and  other  vegeta- 
tion; that  the  ponding  of  this  water  and  the  submerging  of  the  vege- 
tation caused  malaria.  .  .  .  By  amendment  he  set  up  .  .  .  that  mos- 
quitoes which  were  bred  in  the  pond,  and  which  had  not  previously 
infested  it,  became  a  medium  for  the  transmission  of  malaria,  and  did 
transmit  it  to  himself  and  his  family,  causing  them  to  have  malarial 
fever,  which  they  otherwise  would  not  have  had.  He  prayed  for  dam- 
ages on  account  of  the  injury  to  the  use  of  his  premises,  on  account  of 
his  own  sickness,  pain,  and  suffering,  on  account  of  the  loss  of  the 
services  of  his  wife  and  minor  children,  and  on  account  of  expenses  in- 
curred in  connection  therewith.^ 

One  of  the  contentions  of  the  plaintiff  in  error  is  that  if,  as  the 
testimony  of  the  expert  witnesses  strongly  indicated,  the  malarial 
fever  with  which  the  plaintiff  and  his  family,  according  to  his  testi- 
mony, suffered  was  produced  in  them  by  the  bite  of  a  particular  kind 
of  mosquito,  which  was  harmless  and  incapable  of  carrying  the  disease 
unless  it  had  first  bitten  some  other  human  being  already  infected  with 
malaria,  the  relation  between  the  maintenance  of  the  pond,  even  though 

^  Only  so  much  of  the  opinion  as  discusses  this  amendment  is  given.  —  Ed. 


216  REX   V.    DE    MARNY.  [CHAP.  III. 

it  afforded  a  place  for  the  breeding  of  the  mosquitoes,  and  the  final 
communication  of  the  disease  to  the  pUiintiff ,  was  too  remote.  Counsel 
ingeniously  and,  we  suspect,  somewhat  facetiously,  argue  that  the  mos- 
quito is  an  animal  feroe  naturw,  and  that  in  an  action  for  damages 
done  by  a  dangerous  animal,  scienter  on  the  part  of  the  person  harboring 
it  is  a  necessary  allegation ;  citing  Cox  v.  Murphey,  82  Ga.  623  (9  S.  E. 
604),  and  Clarendon  v.  McClelland,  89  Tex.  483  (31  L.  R.  A.  669, 
59  Am.  St.  70,  34  S.  W.  98,  35  S.  W.  474).  Without  making  any  specific 
classification  of  mosquitoes,  we  hold  that  they  are  a  common  pest,  and 
that  the  maintenance  of  a  place  where  they  breed  in  unusual  numbers  is 
such  a  menace  to  persons  residing  nearby  as  to  make  that  place 
ordinarily  a  nuisance;  and  that  if,  as  a  result  of  the  maintenance 
of  such  a  place,  the  mosquitoes  do  in  fact  breed  there,  as  they  other- 
wise would  not  have  bred,  and  become  inoculated  with  malaria,  and, 
in  accordance  with  what  is  naturally  to  be  expected,  fly  abroad  and 
communicate  malarial  fevers,  the  proprietor  of  the  breeding  place  is, 
in  legal  contemplation,  proximately  the  author  of  the  damage. 


SECTION   IV. 

Interposition  of  an  Act  of  the  Injured  Individual. 

,  •"'     ,-N  \p^  REX  V.   DE   MARNY. 


Cl5 


Court  for  Crown  Cases  Reskrved.     1906. 
[Reported  1907,  1  K.  iB.388.] 


Case  stated  for  the  opinion  of  the  Court  for  the  Consideration  of 
Crown  Cases  Reserved  by  the  Common  Serjeant. 

The  defendant  was  tried  at  the  Central  Criminal  Court  on  an  indict- 
ment charging  him  in  several  counts  with  selling  and  publishing,  and 
causing  and  procuring  to  be  sold  and  published  by  certain  named 
persons,  divers  obscene  books,  papers,  and  photographs.  The  indict- 
ment also  contained  a  series  of  counts  charging  him  with  sending,  and 
causing  and  procuring  to  be  sent  by  certain  named  persons,  certain 
postal  packets  containing  obscene  books,  papers,  and  photographs  con- 
trary to,  the  Post  Office  (Protection)  Act,  1884  (47  &  48  Vict.  c. 
76),  s.  4'. 

It  was  proved  that  tlie  defendant  was  the  editor  of  a  newspaper 
called  Judy^  and  that  he  inserted  and  published  in  that  newspaper  ad- 
vertisements of  several  persons  in  England  and  abroad,  offering  for 
sale   books,   catalogues,    and   photographs.      The  chief  inspector   of 


ryA 


SECT.  IV.]  REX   V.   DE    MARNY.  217 

police  wrote  to  the  addresses  given  in  the  advertisements  and  received 
in  return  from  the  persons  or  firms  mentioned  in  the  indictment,  who 
were  all  resident  abroad,  postal  packets  containing  books,  catalogues, 
and  photographs  of  the  most  obscene  character.  The  defendant  had 
been  warned  several  times  b}-  the  police  authorities  that  the  books, 
photographs,  and  other  things  advertised  in  his  paper  in  the  same 
terms  and  by  the  same  persons  were  of  an  obscene  character,  and  that 
one  of  the  persons  so  advertising  in  his  newspaper  had  been  convicted 
for  selling  and  publishing  obscene  libels.  Counsel  for  the  defendant 
submitted  that  there  was  no  evidence  to  go  to  the  jury  that  the  defend- 
ant took  part  in  or  aided  and  abetted  the  selling  and  publishing  of 
obscene  libels  as  charged  in  the  indictment. 

The  Common  Serjeant  held  that  there  was  evidence,  and  directed  the 
jury  that  if  they  were  satisfied  that  the  books  and  photographs  sent  to 
the  police  inspector  in  pursuance  of  the  advertisements  were  obscene, 
and  that  the  defendant  knew  at  the  time  he  published  the  advertise- 
ments that  they  were  advertisements  for  the  sale  of  obscene  literature 
and  photographs,  and  that  by  the  publication  of  these  advertisements 
he  brought  about  the  sale  and  transmission  to  the  inspector  of  the 
books  and  photographs,  they  ought  to  convict  the  defendant,  although 
he  did  not  know  the  actual  contents  of  the  books  or  the  details  of  the 
photographs  sent,  and  that  in  judging  of  the  defendant's  knowledge 
they  might  consider  not  only  the  evidence  of  the  express  warnings 
given  to  the  defendant  and  the  wording  of  each  advertisement,  but  also 
the  other  advertisements  appearing  in  the  same  issue  of  the  paper. 

The  jur\'  found  the  defendant  guilty  on  all  counts. 

The  question  for  the  opinion  of  the  Court  was  whether  the  conviction 
was  right  on  all  or  any  of  the  counts  of  the  indictment. 

Avory,  K.  C,  and  J.  P.  Grain,  for  the  defendant.  The  conviction 
cannot  stand.  If  the  defendant  is  guilty,  he  is  guilty  of  aiding  and 
abetting  the  sale  and  publication  of  the  indecent  literature,  and,  the 
offence  being  a  misdemeanour,  he  is  liable  to  be  indicted  as  a  principal 
in  the  second  degree;  but  the  real  vendors,  who  are  the  principals  in 
the  first  degree,  are  all  foreigners  resident  abroad,  and  they  committed 
no  offence  against  the  English  law  in  sending  indecent  literature  to  this 
country.  If  the  act  done  by  the  principal  in  the  first  degree  is  one 
for  which  he  could  not  be  convicted,  it  follows  that  the  principal  in 
the  second  degree  has  been  guilt}'  of  no  otfence.  Further,  by  publish- 
ing the  advertisements  the  defendant  cannot  be  said  to  have  procured 
in  the  legal  sense  the  publication  of  the  books  sold,  any  more  than  a 
sandwich-man  who  advertises  the  performance  of  a  stage  play  in 
a  music-hall  commits  the  offence  of  procuring  the  illegal  representation 
of  a  stage  play.  Reliance  is  placed  by  the  prosecution  on  the  fact  that 
the  defendant  knew  that  the  advertisements  related  to  obscene  matter, 
but  that  knowledge  is  not  evidence  that  he  aided  and  abetted  or  pro- 
cured the  sale  of  the  particular  things  specified  in  the  indictment.     In 


218  KEX    V.   DE    MARNY.  [CHAP.  III. 

other  words,  the  insertion  of  the  advertisements,  though  it  may  have 
assisted  the  sale  in  a  commercial  sense,  is  legalh"  too  remote  from  the 
commission  of  the  oflence  to  constitute  the  editor  of  the  newspaper  an 
aider  or  abettor  in  the  offence. 

H.  D.  Miiir  and  L.  W.  Kerslimc^  for  the  prosecution.  It  is  a 
fallacy  to  say  that  the  principals  in  the  first  degree  in  this  case  have 
committed  no  offence.  The  person  abroad,  whether  a  foreigner  or  not, 
who  through  his  innocent  agent,  the  postman,  causes  the  publication 
of  indecent  literature  in  this  country  commits  an  offence  against  the 
law  of  England,  and,  if  he  came  within  the  jurisdiction,  could  be  con- 
victed :  Rex  V.  Oliphant,  [1905]  2  K.  B.  67.  The  act  of  sending  the 
books  and  photographs  through  the  post  is  one  continuous  act,  one 
portion  of  which  is  performed  bv  the  foreigner  abroad  and  another  b}' 
the  postman  in  England,  but  the  act  of  sending  continues  right  up  to 
the  moment  of  delivery.  In  Rex  v.  Burdett,  (1820)  1  St.  Tr.  (N.  S.) 
1,  at  pp.  114,  115;  4  B.  &  Aid.  95,  where  a  libel  was  written  by  the 
ilefendant  in  one  county  and  delivered  b}'  the  postal  authorities  in 
another,  it  was  held  that  there  was  a  publication  b}'  the  defendant 
in  the  latter  county  ;  and  at  the  date  of  that  decision  the  same  question 
arose  as  between  different  counties  as  now  arises  between  England  and 
a  foreign  country.  Then,  is  there  any  evidence  that  the  defendant 
aided  and  abetted  or  procured  the  sale  or  publication  within  s.  8  of  the 
Aiders  and  Abettors  Act.  1861  (24  &  25  Vict.  c.  94)  ?  The  foreigner 
abroad  desires  to  get  customers  in  England.  He  can  do  so  either  by 
employing  an  agent  or  by  advertising.  In  either  case  the  effect  is  the 
same.  The  advertisement  in  the  present  case  afforded  that  aid  without 
which  the  vendor  could  not  have  committed  the  illegal  act.  The 
defendant  knew  that  the  advertisements  related  to  indecent  literature, 
and  that  sales  would  or  might  result  from  their  insertion  in  his  paper. 
It  is  immaterial  that  he  may  not  have  known  the  exact  books  or  photo- 
graphs that  would  be  sold  :  Reg.  v.  Cooper,  (1846)  8  Q.  B.  533  ;  Parkes  v. 
Prescott,  (1869)  L.  R.  4  Ex.  11)9. 

[He  was  stopped.] 

Avory,  K.  6'.,    replied. 

Lord  Alverstone,  C.  J.  The  very  able  arguments  which  haye  been 
delivered  on  both  sides  enable  me  to  come  without  any  doubt  to  the 
conclusion  that  this  conviction  must  be  affirmed.  The  defendant  for 
profit  to  himself  inserted  in  his  paper  advertisements  which  give  infor- 
mation to  readers  as  to  where  certain  publications  can  be  obtained,  and 
it  is  found  as  a  fact  that  the  defendant  knew  that  the  books  and  other 
things  advertised  were  of  an  indecent  character,  and  if  one  were  at 
liberty  to  draw  a  conclusion  from  the  advertisements  themselves,  there 
could  be  no  doubt  at  all  as  to  that.  The  Common  Serjeant  directed 
the  jury  in  the  following  terms :  [His  Lordship  read  the  direction  of 
the  Common  Serjeant  set  out  above,  and  continued  :  — ]  In  m}'  opinion 


SECT,  IV.]  REX    V.    DE    MARNY.  219 

that  direction  is  stated  as  favourably  as  it  could  be  for  the  defendant. 
The  jury  are  told  that  in  order  to  convict  tlie  defendant  they  must  be 
satisfied  that  the  defendant  knew  the  character  of  the  publications  re- 
ferred to  in  the  advertisements,  and  that  by  publishing  the  advertise- 
ments he  brought  about  the  sale  of  the  publications  and  other  articles 
referred  to.  That  amounts  in  ordinary  language  to  aiding  or  abetting 
the  publication  in  England  of  obscene  literature,  and  the  sending 
through  the  post  in  England  a  packet  the  sending  of  which  is  pro- 
hibited by  the  Post  Office  (Protection)  Act,  1884.  It  would,  in  my 
opinion,  be  a  lamentable  state  of  things  if  the  law  of  this  country  were 
not  strong  enough  to  deal  with  a  man  who  has  done  so  much  towards 
bringing  about  the  publication  of  indecent  literature.  The  evidence  in 
this  case  shews  that  the  result  of  the  insertion  of  the  advertisements 
in  the  defendant's  paper  was  to  give  information  as  to  where  these 
things  could  be  obtained  to  persons  who,  but  for  the  advertisements, 
would  or  might  never  have  known  of  their  existence,  and,  therefore,  it 
is  not  going  too  far  to  say  that  the  publication  was  directly  brought 
about  by  the  act  of  the  defendant,  and  it  is  further  proved  that  the 
defendant  had  knowledge  that  that  would  be  the  consequence  of  insert- 
ing the  advertisements  in  the  paper.  The  argument  which  has  been 
urged  on  behalf  of  the  defendant  seems  to  me  to  go  too  far,  because  it 
would  equally  apply  if  the  defendant  had  himself  caused  the  books 
to  be  printed  abroad.  In  my  opinion  the  direction  of  the  Common 
Serjeant  was  in  accordance  with  the  law,  and  the  cases  of  Rex  v. 
Oliphant,  supra,  Rex  v.  Burdett,  supra,  and  Reg.  v.  Cooper,  supra, 
are  all  authorities  which  afford  illustration  of  the  same  principle,  that 
in  misdemeanours  persons  who,  in  the  words  of  the  statute,  "  aid,  abet, 
counsel  or  procure  "  the  commission  of  an  offence  are  themselves  prin- 
cipal offenders. 

Grantham  J.  I  am  of  the  same  opinion.  I  doubted  at  first  whether 
the  law  was  strong  enough  to  make  the  person  who  received  money 
for  publishing  these  advertisements  liable  in  the  same  way  as  a  person 
who  himself  sells  indecent  literature,  but  the  authorities  which  have 
been  cited  to  us  by  Mr.  Muir  satisfy  me  that  the  learned  Common 
Serjeant  rightly  directed  the  jury.  The  conviction  must  therefore  be 
affirmed. 

Lawrance,  Bigham  and  Bdcknill,  JJ.,  concurred. 

Conviction  affirmed. 


»^ 


220     BUKK   V.  CREAMERY   PACKAGE   MANUFACTURING  CO.     [CHAP.  III. 


BURK    t.    CREAMERY    PACKAGE    MANUFACTURING    CO. 

Supreme   Court   of   Iowa,  1905. 

.  ,f,:  [Reported  126  7a,  730.] 

Deemer,  J.  Defendant  is  a  corporation  engaged  in  the  manufacture 
and  sale  of  creamery  supplies,  fixtures,  etc.,  at  the  city  of  Waterloo. 
It  keeps  for  sale,  and  sells,  sulphuric  acid,  which  is  extensively  used 
in  all  creameries.  On  or  about  January  26,  1903,  it  sold  at  retail 
to  one  Riedel  a  one-gallon  jug  of  sulphuric  acid,  but  failed  to  label  the 
same  as  required  by  statute,  or  to  indicate  in  any  manner  upon  the  pack- 
age that  it  contained  a  deadly  poison.  Riedel  owned  and  operated 
what  was  known  as  the  "  Crane  Creek  Creamery,"  in  a  rural  commu- 
nity in  Black  Hawk  County,  and  he  took  the  jug  containing  the  acid  to 
his  said  creamery,  and  placed  it  upon  a  shelf  in  one  of  the  rooms  thereof. 
It  was  the  custom  at  this  creamery  to  put  buttermilk  in  jugs  similar  to 
the  one  in  which  the  acid  was  placed,  for  the  use  of  customers  and 
employees  of  the  creamery,  who  were  invited  and  permitted  to  drink 
the  milk  placed  therein.  Harry  O.  Burk,  plaintiff's  minor  son,  who 
was  then  seventeen  years  of  age,  was  lawfully  at  the  creamery  on  the 
9th  day  of  February,  1903,  and,  seeing  the  jug  containing  the  acid,  asked 
an  employee  at  the  creamery  if  he  could  have  a  drink  of  buttermilk. 
The  employee,  not  knowing  that  the  boy  had  his  eye  on  the  sulphuric 
acid  jug,  but  supposing  that  he  was  referring  to  another  close  at  hand, 
which  did  contain  buttermilk,  told  him  that  he  could,  and  invited 
him  to  drink  of  the  milk.  Burk  went  to  the  jug  containing  the  acid, 
and,  supposing  that  it  contained  buttermilk,  drank  therefrom,  and, 
as  a  result  thereof,  died  the  next  day.  The  acid  was  taken  about  two 
o'clock  in  the  afternoon  of  a  bright  day,  and  the  room  in  which  the  jug 
was  kept  was  well  lighted.  Burk's  eyesight  was  good  and  he  could 
easily  have  seen  a  label  had  one  been  placed  upon  the  jug.  Cream- 
eries universally  use  sulphuric  acid  for  the  purpose  of  testing  milk 
and  cream  for  butter  fat,  and  this  the  defendant  company  well  knew. 
The  jug  containing  the  acid  was  a  little  larger  than  the  buttermilk 
jug,  but  both  were  one-gallon  white  jugs,  and  there  was  nothing  in 
general  appearances  to  distinguish  one  from  the  other.  Defendant 
knew  that  it  was  the  custom  of  all  creameries  to  proA'ide  buttermilk 
for  people  to  drink,  and  that  patrons  thereof  carried  the  same  away 
for  use  at  their  homes. 

Code,  §  4976,  provides,  in  substance,  that  if  any  person  deliver  to 
another  any  poisonous  liquor  or  substance  without  having  the  word 
"  poison,"  and  the  true  name  thereof,  written  or  printed  upon  a  label 
attached  to  or  affixed  upon  the  ^^al,  box,  or  parcel  containing  the 
same,  he  shall  be  guilty  of  a  misdemeanor.    And  §§  2588  and  2593 


SECT.  lY.]      BURK    V.    CREAMERY   PACKAGE    MANUFACTURING    CO,      221 

also  prohibit  the  sale  of  poisons,  except  that  the  same  be  labeled  as 
therein  required.  Violation  of  such  statutes  is  uniYcrsally  held  to  be 
negligent.    Ives  v.  Weldon,  114  Io\va,  476,  and  eases  cited. 

But  defendant  contends  that  this  negligence  was  not  the  proximate 
cause  of  the  injury  to  the  plaintiff's  son.  It  was,  of  course,  incum- 
bent upon  the  plaintiff  to  show,  not  only  a  violation  of  one  or  the  other 
of  these  sections  of  the  Code,  but  also  that  such  violation  was  the 
proximate  cause  of  the  injury  and  death  of  his  son.  That  matter 
was  submitted  to  the  jury  under  proper  instructions,  and  it  found  for 
the  plaintiff  on  this  issue. 

But  it  is  said  that  Riedel,  the  owner  of  the  creamery,  was  also 
guilty  of  negligence  in  placing  the  jug  in  the  creamery  at  the  place  he 
did,  that  this  negligence  was  the  approximate  cause  of  the  injury  to 
plaintiff's  son,  and  that  the  defendant  had  no  reason  to  apprehend 
or  anticipate  any  negligence  on  the  part  of  the  purchaser  of  the  acid. 
As  said  in  the  Ives  Case,  supra,  these  statutes  were  made  for  the 
protection  of  all  persons  in  the  State,  and  to  warn  all  that  the  sub- 
stance they  are  handling  is  dangerous,  and  that  its  use  requires  con- 
stant care.  Defendant,  as  we  have  said,  knew  of  the  custom  which 
prevailed  among  creameries,  knew  that  buttermilk  is  kept  there  for  the 
use  of  patrons,  and  that  sulphuric  acid  is  used  in  all  creameries.  It 
knew,  or  should  have  known,  that  anyone  lawfully  about  the  creamery 
was  likely  to  pick  up  this  jug,  and  to  use  the  same  for  any  legitimate  pur- 
pose. It  owed  a  duty  to  anyone  who  might  rightfully  handle  or  use 
the  jug  in  the  ordinary,  usual,  or  customary  manner.  This  jug  had 
to  be  kept  about  the  creamery,  and  there  was  no  statutory  or  other  ob- 
ligation on  the  part  of  the  creamery  owTier  to  keep  it  under  lock  and 
key.  Of  course,  if  he  knew  that  it  was  not  labeled,  or  by  the  use  of 
ordinary  care  should  have  known  of  that  fact,  he  would  be  required, 
on  account  of  the  dangerous  character  of  the  acid,  to  use  due  care  to 
protect  all  persons  who  might  rightfully  come  in  contact  therewith. 
But  failure  on  the  part  of  the  purchaser  to  do  this  would  not  neces- 
sarily excuse  the  vender  for  his  violation  of  law. 

But  defendant  insists  that  it  had  no  reason  to  anticipate  the  wrong- 
ful or  negligent  acts  of  the  manager  of  the  creamery,  and  that  it  is  for 
that  reason  not  liable  for  the  consequences  thereof.  While  there  are 
some  loose  expressions  in  the  books  to  the  effect  that  one  is  not  liable 
for  negligence  unless  the  results  of  his  acts  might  reasonably  have  been 
foreseen  by  him,  the  true  doctrine,  as  we  understand  it,  is  that  it  is  not 
necessary  to  a  defendant's  liability  that  the  consequences  of  his  negli- 
gence should  have  been  foreseen.  It  is  sufficient  if  the  injuries  are  the 
natural,  though  not  the  necessary  or  inevitable,  result  of  the  ^\Tong; 
such  injuries  as  are  likely,  under  ordinary  circumstances,  to  ensue 
from  the  act  or  omission  in  question.  The  test,  after  all,  is,  would 
ordinary  prudence  have  suggested  to  the  person  sought  to  be  charged 
with  negligence  that  his  act  or  omission  would  probably  result  in  in- 


222   BURK  V.   CREAMERY  PACKAGE  MANUFACTURING  CO.   [CHAP.  III. 

jury  to  someone?  The  particular  result  need  not  be  such  as  that  it 
should  have  been  foreseen.  Palmer  v.  R.  R.  Co.,  124  Iowa,  424; 
Hazzard  v.  City,  79  Iowa,  106;  Doyle  v.  R.  R.  Co.,  77  Iowa,  607; 
Osborne  v.  Van  Dyke,  113  Iowa,  557.  In  applying  this  doctrine  to  cases 
where  there  is  an  intervening  agency,  it  is  generally  held  that  the  in- 
tervening act  of  an  independent  voluntary  agent  does  not  arrest  cau- 
sation, nor  relieve  the  person  doing  the  first  wTong  from  the  consequen- 
ces'^thereof,  if  such  intervening  act  was  one  which  would  ordinarily 
be  expected  to  flow  from  the  act  of  the  fiirst  wrongdoer.  Lane  v. 
Atlantic,  111  Mass.  136. 

Where  several  proximate  causes  contribute  to  an  accident,  and 
each  is  an  efficient  cause,  without  the  operation  of  which  the  accident 
would  not  have  happened,  it  may  be  attributed  to  all  or  any  of  the 
causes;  but  it  cannot  be  attributed  to  a  cause  unless  wathout  its  oper- 
ation the  accident  would  not  have  happened.  These  rules  have  full 
support  in  our  cases.  Walrod  v.  Webster  Co.,  110  Iowa,  349;  Harvey 
V.  Clarinda,  111  Iowa,  528;  Buehner  v.  Creamery  Co.,  124  Iowa,  445; 
Palmer  v.  R.  R.  Co.,  124  Iowa,  424;  Gould  v.  Schermer,  101  Iowa,  582; 
Liming  v.  R.  R.  Co.,  81  Iowa,  246;  Schnee  v.  City,  122  Iowa,  459; 
Ives  V.  Weldon,  supra. 

Referring  now  to  the  facts.  The  jury  was  fully  justified  in  finding 
that  but  for  defendant's  act  or  omission  the  accident  in  question  would 
not  have  happened.  Under  the  testimony,  the  injury  to  plaintiff's 
son  might  well  have  been  found  to  be  the  direct  and  proximate  result 
of  defendant's  failure  to  label  the  jug  containing  the  poison.  Had  it 
been  labeled,  the  accident  would  not  have  happened,  even  though 
the  managers  of  the  creamery  may  have  been  negligent  in  placing  it 
where  they  did.  Moreover,  had  it  been  properly  labeled,  the  jury  might 
well  have  concluded  that  there  would  have  been  no  negligence  on  the 
part  of  the  creamery  managers  in  placing  it  where  they  did. 

The  direction  to  plaintiff's  son  to  drink  out  of  a  jug  was  not  of  itself 
negligence.  The  person  giving  the  permission  did  not  know  that  the 
boy  had  in  mind  the  jug  containing  the  acid,  and  there  is  nothing  to 
show  that  this  person  even  knew  there  was  a  jug  there  containing  acid. 
It  was  a  question  for  the  jury,  under  proper  instructions,  to  determine 
whether  or  not  defendant's  negligence  was  the  proximate  cause  of  the 
accident.  See  cases  hitherto  cited.  The  instructions  given  by  the  trial 
couit  on  that  subject  were  correct,  and  with  the  finding  of  the  jury 
thereunder  we  are  not  disposed  to  interfere. 

The  defendant  might  reasonably  have  foreseen  that  its  act  or  omis- 
sion was  likely  to  cause  injury  to  someone  who  might  rightfully  handle 
the  jug,  and  it  is  not  enough  for  it  to  say  that  it  could  not  reasonably 
have  foreseen  the  exact  mishap.  None  of  the  cases  cited  and  relied 
upon  by  appellant  announce  a  contrary  doctrine,  although  in  some  of 
them  expressions  are  used  which,  in  a  measure  at  least,  give  color 
to  its  propositions.     With  reference  to  these,  and  to  all  other  cases 


SECT.  IV.]  BELL   V.    ROCHEFORD.  223 

bearing  upon  the  subject,  it  may  be  said  that  no  one  has  as  yet  given 
a  very  satisfactory  definition  of  proximate  cause.  Indeed,  one  must 
of  necessity  look  to  practical  distinctions  on  this  subject,  rather  than 
to  merely  academic  or  theoretical  ones,  and,  after  all  is  said,  each  case 
must  be  decided  largely  on  the  special  facts  belonging  to  it.  At  most, 
the  act  of  Riedel  was  a  concurring  and  cooperating  fault,  and  not  in 
itself  the  producing  cause  of  the  injury.^ 

The  principal  point  in  the  case  is  the  doctrine  of  proximate  cause  as 
applied  to  the  facts  disclosed  by  the  record.  We  think  there  was  suffi- 
cient testimony  to  take  the  case  to  the  jury  on  this  proposition. 

There  is  no  error  in  the  record,  and  the  judgment  is  affirmed. 


BELL  V.  ROCHEFORD. 
Supreme  Court  of  Nebraska,  1907. 

[Reported  78  Neb.  310.] 

The  defendants  were  independent  contractors  engaged  in  the  erec- 
tion of  a  power  house  for  the  Omaha  Street  Railway  Company,  and 
were,  at  the  time  of  the  accident,  putting  in  a  concrete  floor  in  the 
second  story.  That  portion  of  the  floor  at  the  point  where  the  acci- 
dent occurred  was  above  a  room  9  by  40  feet,  with  a  10  foot  ceiling. 
To  support  the  concrete  steel  I  beams  were  placed  crosswise  of  the 
room  at  a  distance  of  8  or  9  feet  apart.  They  rested  at  either  end  upon 
a  concrete  wall,  in  which  openings  were  left  for  that  purpose.  The 
steel  beams  were  from  4  to  6  inches  wide  at  the  base  and  top,  10  inches 
deep,  and  weighed  150  pounds.  The  pockets  into  which  the  ends  were 
placed  were  about  10  inches  wide.  For  the  purpose  of  holding  the 
concrete  in  position  until  it  hardened,  wooden  forms  were  built  so 
that  they  might  be  removed  after  the  concrete  became  self-supporting. 
These  forms  were  constructed  by  placing  a  2-by-l 2-inch  plank  length- 
wise under  each  I  beam,  and  were  held  in  place  by  means  of  4-by-4 
inch  pieces  extending  from  the  lower  floor  to  the  under  side  of  the 
plank,  leaving  a  margin  of  from  3  to  4  inches  on  either  side  of  the  steel. 
The  space  between  two  I  beams  was  called  a  section.  Other  planks 
were  then  placed  cross\\ase  of  the  section,  the  ends  resting  upon  the 
edge  of  the  2-by-l  2-inch  pieces. 

Wooley  called  to  the  plaintiff  to  come  and  assist  him  in  putting 
this  last  plank  in  place.  Wooley  was  at  the  west  side  of  the  form  and 
the  plaintiff  at  the  east.  The  plank  selected  was  a  little  wide  for  the 
opening,  and  in  order  to  crowd  it  into  place  one  edge  of  this  plank 
and  the  edge  of  an  adjoining  plank  were  raised,  placed  together  in  a 
V  shape,  and  the  plaintiff,  in  a  stooping  position,  was  attempting  to 

^  The  discussion  of  other  alleged  errors  is  omitted.  —  Ed. 


224  BELL    V.    ROCHEFOKD.  [CITAP.  IIL 

crowd  it  into  place.  His  weight  and  the  pressure  caused  the  2-by-12 
on  the  side  where  he  was  at  work  to  tip,  the  steel  beam  turned  over, 
and  the  form  of  that  entire  section  fell  with  the  plaintiff  into  the  base- 
ment below,  resulting  in  the  injury  on  account  of  which  damages  are 
claimed.^ 

Calkins,  C.  This  cause  was  submitted  upon  an  oral  argument 
of  a  motion  for  a  rehearing.  .  .  .  The  amended  petition  described  the 
construction  of  the  forms,  set  forth  the  particular  facts  which  it  was 
claimed  made  the  structure  insecure,  and  alleged  that  the  plaintiff, 
in  obedience  to  the  direction  of  the  defendant's  foreman,  went  upon  the 
structure,  and,  while  engaged  in  his  work  thereon,  was  by  the  falling 
of  the  structure  precipitated  to  the  floor  below,  thereby  suffering  the 
injuries  complained  of.  If  we  understand  the  contention  of  the  defend- 
ant's counsel,  it  is  that,  since  the  petition  does  not  state  that  the  weight 
of  the  plaintiff  and  his  efforts  to  crowd  the  plank  in  place  caused  the 
collapse  of  the  section,  it  fails  to  allege  the  proximate  cause  of  the  acci- 
dent. The  argument  of  the  defendant  proceeds  upon  the  theory  that 
placing  the  weight  of  the  plaintiff  upon  the  structure,  and  his  effort 
to  put  the  plank  in  place,  was  the  proximate  cause  of  the  accident.  It 
is  the  same  as  if,  in  a  case  where  A,  owing  a  duty  to  B  to  construct  a 
bridge  in  a  safe  and  secure  manner,  negligently  leaves  it  unsafe  and  in- 
secure, and  B,  relying  upon  its  apparently  safe  condition,  or,  as  in  this 
case,  upon  the  express  direction  of  A,  goes  upon  it  and  it  falls,  we 
should  say  that  the  proximate  cause  of  the  catastrophe  was  the  weight 
of  B,  and  not  the  negligence  of  A.  Such  is  not  the  law.  The  proximate 
cause  is  the  dominant  cause,  not  the  one  which  is  incidental  to  that 
cause,  its  mere  instrument,  though  the  latter  may  be  nearest  in  time 
to  the  injury.  Milwaukee  &  St.  P.  R.  Co.  v.  Kellogg,  94  U.  S.  469; 
Aetna  Fire  Ins.  Co.  v.  Boon,  95  U.  S.  H7.  The  inquiry  must  be, 
says  Mr.  Justice  Strong,  "whether  there  was  any  intermediate  cause, 
disconnected  Anth  the  primary  fault  and  self-operating,  which  pro- 
duced the  injury."  It  is  clear  that  the  weight  of  the  plaintiff,  and  his 
efforts  to  place  the  plank,  was  not  such  intermediate  cause,  disconnected 
from  the  primary  fault  and  self-operating,  and  was  not,  therefore,  in 
the  meaning  of  the  term  as  applied  in  the  law  of  negligence,  the  proxi- 
mate cause  of  the  injury,  and  it  was  neither  necessary  nor  proper 
to  plead  it  as  such  in  the  petition. 

We  are  therefore  of  the  opinion  that  the  motion  for  a  rehearing 
should  be  overruled,  and  we  so  recommend. 

Jackson,  C,  concurs. 

By  the  court:  For  the  reasons  stated  in  the  foregoing  opinion,  the 
motion  for  a  rehearing  is 

Overruled.^ 

1  This  statement  of  the  facts  is  taken  from  the  report  of  the  original  hearing,  78 
Neb.  304.  — Ed. 

^  See  also  Commonwealth  Electric  Co.  v.  Rose,  214  111.  .545,  73  N.  E.  780;  Knapp 


SECT.  IV.]      WOODSON   V.    METKOPOLITAN    STREET    RAILWAY    CO.        225 

WOODSON   V.   METROPOLITAN   STREET   RAILWAY   CO. 
Supreme  Court  of  Missouri,  1909. 

[Reported  224  Mo.  685.] 

Graves,  J.^  .  .  .  But  plaintiff  urges  that,  concede  it  to  be  true, 
as  defendants  say,  and  as  their  evidence  strongly  tended  to  prove, 
that  deceased  became  affected  and  staggered  from  the  brick  walk  to 
the  sodded  portion  thereof  and  in  that  condition  received  an  injury 
which  hastened  his  death,  yet  plaintiff  is  entitled  to  recover.  We 
shall  consider  this  question,  first,  upon  the  merits  of  the  contention 
without  reference  to  the  pleadings.  We  start  with  the  proposition 
that  under  the  evidence  there  was  a  dangerous  obstruction  upon  the 
sidewalk  and  the  same  had  been  there  for  such  length  of  time  that  the 
law  presumes  notice  upon  the  part  of  the  city,  and  for  that  reason 
its  maintenance  there  at  the  date  of  the  accident  was  negligence  upon 
the  part  of  the  city.  As  to  the  other  defendant,  we  will  discuss  that 
later.  Now,  under  these  facts,  with  a  part  of  the  sidewalk  negligently 
obstructed  by  the  city,  let  us  proceed  \\ith  proper  caution  to  get  the 
case  properly  stated  upon  the  theory  that  deceased  was  overcome  by 
vertigo  or  some  other  condition  superinduced  by  disease  which  was 
preying  upon  his  \'itals.  The  case  made  may  be  thus  stated:  De- 
ceased was  leisurely  walking  along  on  that  portion  of  the  sidewalk 
which  had  been  paved,  and  which  was  not  obstructed.  Suddenly  he 
is  seized  with  vertigo  or  something  of  that  character.  In  his  despera- 
tion he  staggers  towards  the  little  tree  and  tries  to  grasp  it,  but  fails 
and  falls  upon  the  obstruction  negligently  there  maintained  l)y  de- 
fendant city.  He  strikes  his  head  with  such  force  as  to  cut  through 
to  the  skull  bone  for  the  length  of  an  inch  and  a  half.  The  plaintiff's 
physicians  say  that  the  shock  from  that  blow  was  the  cause  of  his  death 
at  that  immediate  time;  that,  while  subsequently  he  would  ine\-ita- 
bly  have  been  overcome  by  the  disease,  the  symptoms  revealed  were 
not  such  as  to  indicate  this  early  demise,  save  and  except  as  the  dis- 
eased condition  was  augmented  by  the  shock.  Under  the  e\ddence, 
but  for  the  obstruction  the  fall  of  deceased  would  have  been  upon  the 
soft  grass  plot.  Lender  these  facts  is  there  liability  upon  the  part  of  the 
city?  The  city  says  not,  because  it  was  an  injury  which  was  not  to 
be  reasonably  anticipated  as  a  sequence  to  its  negligent  act.  Is  this 
true?    Under  these  facts,  it  cannot  be  said  that  deceased  was  negligent. 

T.  Sioux  City  &  P.  Ry.,  65  Iowa,  91,  21  N.  W.  198;  Buckner  r.  Stock  Yards  H.  & 
M.  Co.,  221  Mo.  700,  120  S.  W.  766;  Lawrence  v.  Heidbreder  Ice  Co.,  119  Mo. 
App.  316,  93  S.  W.  897;  Ray  v.  Pecos  &  N.  T.  Ry.,  40  Te.x.  Civ.  App.  99,  88  S.  W. 
466.  — Ed. 

1  An  extract  from  the  opinion  only  is  given.  —  Ed. 


226     ^YOODSON  v.  metropolitan  street  railway  CO.     [chap,  iil 

A  man  blinded  by  vertigo,  or  suffering  from  some  other  similar  con- 
dition, cannot  be  said  to  be  negligent  if  he  grasps  for  support  a  little 
tree  planted  by  the  city  in  a  portion  of  the  sidewalk.  The  proximate 
cause  of  his  injury  would  consist  of  two  acts,  one  coming  from  him  in 
a  dazed  condition,  and  not  negligent,  and  one  coming  from  the  city  in 
permitting  an  obstruction  upon  the  sidewalk,  which  act  was  negligence. 
It  ofttimes  occurs  that  the  proximate  cause  of  an  injury  is  of  double 
character.  In  other  words  there  may  be  two  or  more  causes  uniting 
to  produce  the  injury.  In  such  case  if  the  act  of  the  plaintiff,  which  is 
one  of  the  causes,  is  not  negligent,  and  the  act  of  the  defendant,  which 
is  the  other  of  such  causes,  is  negligent,  then  there  can  be  a  recovery  by 
the  injured  party,  or  the  one  to  whom  the  cause  of  action  goes,  if  death 
results  from  the  injury.  (Musick  v.  Dold  Packing  Co.,  58  Mo.  App.  322.) 
This  case  was  discussed  and  approved  by  this  court  in  Huss  v.  Bakery 
Co.,  210  Mo.  1.  c.  53.  It  is  true  that  we  distinguished  the  Musick 
Case  from  the  Huss  Case,  but  we  fully  recognized  the  soundness  of 
the  law  announced  in  the  Musick  Case.  In  distinguishing  the  cases 
we  used  this  language:  "Here  we  have  a  record  full  of  evidence  that 
the  plaintiff  had  neglected  one  of  his  duties  in  permitting  the  passage- 
way to  become  slippery.  The  slippery  condition  occasioned  his  fall, 
and,  as  a  result  of  the  fall,  his  injury.  The  case  is  not  on  all-fours  with 
Musick  V.  Dold  Packing  Company,  58  Mo.  App.  322,  relied  upon  by 
the  plaintiff.  In  the  Musick  Case  the  fall  of  plaintiff  was  occasioned 
by  a  slippery  floor,  and  by  the  fall  the  plaintiff  was  throwTi  into  an 
uncovered  vat  of  hot  water  and  burned.  There  was  no  e\'idence  that 
in  that  record  to  the  effect  that  the  slippery  condition  was  the  result 
of  neglect  or  failure  upon  the  part  of  Musick,  and  therein  lies  the 
distinction  between  that  case  and  the  case  at  bar.  In  other  words, 
Musick  had  been  guilty  of  no  negligence  which  contributed  to  his  injury, 
as  a  proximate  cause  thereof,  or  as  one  of  the  proximate  causes  thereof. 
Here  the  jury  could  readily  find  that  the  fall  upon  the  slippery  floor, 
at  least  one  of  the  proximate  causes  of  the  injury,  was  occasioned 
by  the  neglect  of  the  plaintiff,  and  in  that  way  his  own  neglect  contrib- 
uted to  the  injury  received  and  was  one  of  the  producing  causes  there- 
of. There  may  be  a  combination  of  causes  producing  an  injury.  In 
this  case,  but  for  the  slippery  floor  (a  condition  superinduced  by  the 
negligence  of  the  plaintiff),  there  would  have  been  no  fall  and  conse- 
quently no  injury.  On  the  other  hand,  there  might  have  been  the  fall 
and  no  consequent  injury  had  the  machinery  been  guarded.  The 
injury  was  not  therefore  entirely  dependent  upon  one  cause,  but  upon 
a  result  of  the  two  combined,  one  of  which  was  the  product  of  plaintiff's 
neglect  of  duty  and  want  of  due  care  for  his  own  safety." 

In  the  case  at  bar,  if  the  plaintiff  fell  for  the  reasons  urged  by  defend- 
ants, there  was  no  negligence  in  this  act,  which  was  one  of  the  two 
causes  which  produced  the  injury.  The  other  contributing  cause  is 
practically  the  conceded  negligence  of  the  city.    So  that,  on  the  e\adence 


SECT.  IV.]       WOODSON   V.   METKOPOLITAN   STREET   RAILWAY   CO.        227 

introduced  by  defendant,  plaintiff  was  entitled  to  recover  if  the  result 
was  one  which  could  have  reasonably  been  anticipated  to  flow  from  the 
negligent  act.  Because  deceased  was  diseased  he  was  not  precluded 
from  walking  upon  the  sidewalk.  Nor  is  it  a  stretch  of  imagination 
to  say  that  the  city  must  know  that  afflicted  persons  of  all  kinds  walk 
upon  sidewalks. 

This  court  has  taken  broad  grounds  as  to  what  cases  may  be  con- 
sidered as  falling  within  the  rule  of  reasonable  anticipation  of  results 
from  negligence  in  difterent  cases.  In  Dean  v.  Railroad,  199  Mo.  386, 
we  have  a  case  where  the  defendant  had  negligently  overloaded  the 
tender  of  its  engine  with  coal,  and,  in  speeding  along  its  tracks,  a  lump 
thereof  was  thrown  off  and  struck  and  injured  the  plaintiff's  knee.  We 
held  defendant  liable.  In  so  doing  we  approved  a  rule  of  law  announced 
by  the  Iowa  court.  In  that  case,  1.  c.  411,  we  said:  "The  fact  that  the 
effect  in  this  case  was  somewhat  unusual  cannot  defeat  a  recovery. 
The  fact  that  but  few  accidents  of  this  sort  are  recorded  in  the  books 
cannot  save  the  situation  for  defendant;  for  it  is  self-e\ddent  that  the 
question  of  injury  to  a  man's  knee  from  a  flying  chunk  of  coal  depends 
alone  upon  the  coal  and  the  knee  coming  in  contact.  If  the  knee  was 
not  there,  the  knee  would  not  be  injured;  if  the  knee  was  there,  then 
—  it  is  another  story.  In  this  case  both  the  man  and  his  knee  were 
at  a  proper  place,  at  a  place  defendant's  lessee  had  reason  to  antici- 
pate their  presence.  The  rule  of  law  controlling  in  this  particular 
is  thus  formulated :  '  The  liability  of  a  person  charged  with  negligence 
does  not  depend  upon  the  question  whether,  with  the  exercise  of  rea- 
sonable prudence,  he  could  or  ought  to  have  foreseen  the  very  injury 
complained  of;  but  he  may  be  held  liable  for  anything,  which,  after 
the  Injury  is  complete,  appears  to  have  been  a  natural  and  probable 
consequence  of  his  act  or  omission.'  [Fishburn  v.  Railroad,  127 
Iowa,  1.  c.  492,  et  seq.,  and  cases  cited.]" 

The  doctrine  of  this  case  was  cited  with  approval  by  the  court  in 
banc  in  Zeis  v.  St.  Louis  Brewing  Ass'n,  205  Mo.  1.  c.  651.  Upon  this 
theory  we  believe  there  is  substance  in  plaintiff's  claim,  the  cause  is 
one  which  should  be  submitted  to  a  jury.  But  it  does  not  follow 
from  this  that  it  was  properly  submitted  under  the  pleadings  and  in- 
structions herein.^ 

1  The  court  held  that,  this  theory  of  the  case  not  having  been  presented  to  tlie 
jury,  there  must  be  a  new  trial. 

See  also  Ashborn  v.  Waterbury,  70  Conn.  551,  40  Atl.  45<S;  Christiansen  v.  Chicago 
S.  P.  M.  &  O.  Ry.,  (37  Minn.  94,  69  N.  W.  640;  Birsch  v.  Citizens'  Electric  Co.,  36 
Mont.  574,  93  Pac.  940.  —  Ed. 


228   ATCHISON,  TOPEKA  AND  S^ANTF:  FE  KV,  CO.  V.   PARKY.   [CHAP.  III.  ^^ 


ATCHISON,   TOPEKA   AND   SANTA   FE   RAILWAY   CO. 

V.    PARRY. 

Supreme  Court  of  Kansas,  1903. 

[Reported  67  Kan.  515.] 

Cunningham,  J.  Robert  Parry  was  a  passenger  on  the  Santa 
Fe  Railway  going  from  Purcell,  Ind.  T.,  to  Denver,  Colo.  In  making 
this  journey  he  was  required  to  change  cars  at  Newton,  Kan.  As 
the  train  approached  Newton,  and  a  mile  or  two  south  of  it,  the  con- 
ductor observed  that  Parry  was  ailing  with  something  that  looked 
to  him  like  a  fit.  He  noticed  that  Mr.  Parry  "  was  straightened  out,  and 
his  limbs  were  stiff  and  jerking.  He  was  frothing  at  the  mouth,  and  his, 
eyes  looked  glaring  and  starry,  just  like  a  man  that  had  a  fit."  When 
the  train  arrived  at  Newton,  Mr.  Parry  seemed  to  be  recovering,  but 
had  not  entirely  regained  consciousness,  and  the  conductor  was  unable 
to  get  any  response  when  he  tried  to  converse  with  him.  The  con- 
ductor called  the  depot  master,  who,  with  the  assistance  of  the  porter, 
removed  Mr.  Parry  from  the  train,  the  depot  master  being  informed 
by  the  conductor  of  the  condition  of  the  passenger,  and  requested  to 
take  care  of  him,  and  see  that  he  was  put  upon  the  right  train  to  take 
him  to  his  destination,  which  train  was  to  leave  in  about  four  hours. 
After  the  passenger  was  removed  from  the  train,  he  was  left  in  the  care 
of  the  depot  master,  the  porter  going  to  his  other  duties.  The  depot 
master  tried  to  talk  with  him,  but  elicited  nothing  but  groans,  mutter- 
ings,  and  unintelligible  replies.  It  seemed,  however,  to  the  depot  master 
that  he  desired  to  go  his  own  way  without  any  assistance,  so  that,  after 
helping  him  on  with  his  coat,  he  was  allowed,  after  about  five  or  ten 
minutes,  to  take  his  own  course,  without  further  attention,  the  depot 
master  supposing  that  he  had  been  drinking,  and  desired  to  go  where 
he  could  procure  liquor.  The  next  seen  of  him  was  about  four  hours 
after  his  removal  from  the  train,  at  a  point  about  five  miles  south 
of  Newton,  where,  having  lain  down  upon  the  railway  tracks,  he  was 
run  over  by  a  south-bound  train  and  killed.  The  negligence  counted 
upon  by  the  plaintiff,  his  widow,  as  a  ground  for  recovery,  was  that 
the  company  failed  to  exercise  a  proper  degree  of  caution  and  care 
in  looking  after  ]Mr.  Parry  after  he  was  removed  from  the  train  in  an 
vmconscious  and  irresponsible  condition  of  mind  and  body.  The 
jury  returned  a  general  verdict  in  favor  of  the  defendant  in  error,  and 
also  answered  special  questions  submitted  to  them,  among  which  are 
the  following :  "  (7)  What  was  his  apj)earance  and  condition,  mentally 
and  physically,  on  his  arrival  at  Newton?  Ans.  Recovering  from  a 
con\Tilsion,  and  partially  unconscious.  (8)  Did  J.  W.  Anderson,  the 
depot  master,  at  Newton,  of  the  defendant,  take  charge  of  the  de- 


SECT.  IV.]       ATCHISON,  TOPEKA  AND  SANTE  FE  KY.  CO.  V.  PARRY.      229 

ceased  upon  his  arrival  at  Newton?  Ans.  He  did."  "  (10)  Does  said 
Anderson  possess  the  common  and  ordinary  capabiHties,  judgment,  and 
prudence  of  men  and  persons  generally?  Ans.  We  think  so.  (11) 
About  how  long  did  said  Anderson  keep  charge  of  said  deceased? 
Ans.  Five  to  ten  minutes."  "  (15)  When  said  Anderson  ceased  to  care 
for  the  deceased,  did  Anderson  believe  that  the  deceased  had  sufl&cient 
strength  and  conrjciousness  to  take  care  of  himself?  Ans.  He  claimed 
so.  (16)  At  the  time  Anderson  ceased  to  care  for  the  deceased,  did  he 
think  or  contemplate  that  deceased  would  wander  away,  and  after- 
wards get  into  a  place  of  danger  and  lose  his  life?  Ans.  No."  The 
railroad  company  demurred  to  the  plaintifT's  evidence,  which  was  over- 
ruled. It  also  moved  for  judgment  in  its  favor  upon  the  special  find- 
ings. This  was  overruled,  and  judgment  entered  for  plaintiff  upon  the 
general  verdict. 

The  railway  company  here  insists  that  the  judgment  against  it  was 
erroneous,  first,  because  there  was  no  e\adence  showing  any  culpable 
negligence  on  the  part  of  any  of  its  agents  or  servants ;  second,  if  there 
was,  that  such  negligence  was  not  the  proximate  cause  of  the  injury.^ 

It  is  further  contended  that,  even  though  the  depot  master  was  neg- 
ligent in  his  manner  of  treatment  of  the  deceased,  such  negligence  was 
not  the  proximate  cause  of  the  death;  that  no  reasonably  prudent  man 
would  have  foreseen  that  Parry  would  have  wandered  away  for  a  dis- 
tance of  five  miles,  and  have  laid  down  or  fallen  upon  the  track  in 
such  a  place  and  position  that  he  would  be  run  over  by  the  train,  and 
thus  killed;  and  that  the  company,  therefore,  was  not  required  to 
guard  against  so  improbable  a  result.  Negligence,  to  be  the  proximate 
cause  of  an  injury,  must  be  such  that  a  person  of  ordinary  caution  and 
prudence  would  have  foreseen  that  an  injury  would  likely  result  there- 
from; not  that  the  specific  injury  would  result,  but  an  injury  of  some 
character.  "  '  It  is  not  necessary,'  say  the  Supreme  Court  of  Minnesota, 
following  the  Supreme  Judicial  Court  of  Massachusetts, '  that  the  injury, 
in  the  precise  form  in  which  it  in  fact  resulted,  should  have  been  fore- 
seen. It  is  enough  that  it  now  appears  to  have  been  a  natural  and 
probable  consequence.'  In  other  words,  it  is  not  necessary  to  a  de- 
fendant's liability,  after  his  negligence  has  been  established,  to  show, 
in  addition  thereto,  that  the  consequence  of  his  negligence  could  have 
been  foreseen  by  him;  it  is  sufficient  that  the  injuries  are  the  natural, 
though  not  the  necessary  and  inevitable,  result  of  the  negligent  fault." 
Thompson's  Com.  Law  of  Neg.,  §  59.  It  here  appears  that  the  place 
where  the  depot  master  permitted  Parry  to  go  by  himself  was  near 
a  street  crossing  over  which  tracks  "Cvere  laid  along  which  trains  passed. 
It  was  a  place  of  danger  to  one  not  in  the  possession  of  his  faculties; 
a  place  where  the  depot  master  might  reasonably  have  apprehended 
that  harm  of  some  sort  would  come  to  Parry  in  his  then  condition. 

1  The  court  held  that  there  was  sufficient  evidence  to  support  the  verdict  upon 
the  first  point.  — Ed. 


230  MUNSEY  V.   WEBB.  [CHAP.  III. 

So  that,  although  he  wandered  for  four  hours,  and  was  run  over  five 
miles  from  this  place,  the  act  of  the  depot  master  in  permitting  him 
to  go  was  no  less  the  proximate  cause  of  his  death  than  it  would  have 
been  if  it  had  occurred  within  a  short  distance  and  a  few  moments. 
At  most,  the  question  whether  the  negligence  of  the  depot  master 
was  the  proximate  cause  is  one  upon  which  the  minds  of  different  parties 
might  reasonably  disagree,  and,  such  being  the  case,  and  the  whole 
matter  haxang  been  submitted  to  a  jury  under  proper  instructions,  and 
it  having  found  that  it  was,  we  may  not  disregard  these  findings  of 
fact.  We  are  of  the  opinion  that  upon  both  questions  there  was  suffi- 
cient evidence  to  go  to  the  jury  and  to  sustain  the  general  finding  in 
favor  of  the  defendant  in  error. 

The  judgment  will  be  affirmed.    All  the  Justices  concurring. 


MUNSEY  ».   WEBB. 
Supreme  Court  of  the  United  States,  1913. 

[Reported  231   U.  S.  150.] 

Holmes,  J.  This  is  an  action  brought  against  the  owmer  of  a  build- 
ing for  causing  the  death  of  the  plaintiff's  intestate  in  an  elevator  in 
which  the  deceased  was  being  carried  to  his  place  of  employment.  Neg- 
ligent construction  and  negligent  management  of  the  elevator  are  al- 
leged. The  plaintiff  had  a  verdict  against  a  request  by  the  defendant 
that  one  be  directed  for  him,  the  judgment  was  affirmed  by  the  Court 
of  Appeals,  37  App.  D.  C.  185,  and  the  defendant  brought  the  case 
here. 

The  elevator  car  did  not  quite  fill  the  well,  or  shaft,  and  the  bot- 
tom of  the  floor  that  it  was  approaching  projected  at  right  angles  into 
the  well  about  three  and  one-half  inches.  The  car  was  equipped  ^-ith 
a  collapsible  door,  which  was  open  at  the  time  of  the  accident,  and  the 
boy  in  charge  did  not  have  his  arm  across  the  space  as  he  had  been 
instructed  to  do.  Between  the  fourth  and  fifth  floors  the  deceased  fell 
and  his  head  was  caught  between  the  projecting  bottom  of  the  fifth 
floor  and  the  floor  of  the  car  and  was  crushed.  The  negligence  relied 
upon  is  the  leaving  of  the  door  open  and  failure  to  guard  the  space; 
the  not  ha\'ing  a  flange  or  piece  of  metal  inclining  from  the  projecting 
floor  to  the  shaft  wall,  and  the  failure  to  use  an  emergency  switch, 
the  quickest  means  of  stopping  the  car,  the  boy  in  charge  not  having 
been  instructed  in  the  use  of  it. 

The  plaintiff  in  error  argued  at  some  length  that  there  "was  no  neg- 
ligence, because  the  fall  of  the  deceased  was  something  wholly  out  of 
the  ordinary  course  and  not  to  be  foreseen;  or  that,  if  there  was  neg- 
ligence in  any  sense,  it  was  not  the  proximate  cause  of  the  death  but 


SECT.  IV.]  MUNSEY    V.   WEBB.  231 

merely  a  passive  condition  made  harmful  by  the  fall.  Neither  argu- 
ment can  be  maintained.  It  is  true  that  it  was  not  to  be  anticipated 
specifically  that  a  man  should  drop  from  internal  causes  into  the  open 
door  of  the  car.  But  the  possibility  and  the  danger  that  in  some  way 
one  in  the  car  should  get  some  part  of  his  person  outside  the  car  while 
it  was  in  motion  was  obvious  and  was  shown  to  have  been  anticipated 
by  the  door  being  there.  In  some  circumstances  at  least  it  was  a 
danger  that  ought  to  be  and  was  guarded  against.  It  is  said  that  the 
danger  was  manifest  only  when  the  car  was  crowded,  and  that  the  door 
was  needed  only  for  that.  If  the  duty  to  have  the  car  shut  on  all 
sides  had  been  created  with  reference  only  to  conditions  difPerent  in 
kind  from  those  of  the  accident  it  may  be  that  the  plaintiff  could  not 
avail  himself  of  a  requirement  imposed  alio  intuitu.  Eugene  F.  Moran, 
212  U.  S.  466,  476.  But  the  accident  was  similar  in  kind  to  those  against 
which  the  door  was  provided,  and  we  are  not  prepared  to  say,  contrary 
to  the  finding  of  the  jury,  that  the  duty  to  keep  it  shut  or  to  guard 
the  space  with  the  arm  did  not  exist  in  favor  of  all  travelers  in  an  ele- 
vator ha\'ing  the  structure  that  we  have  described.  It  was  not  neces- 
sary that  the  defendant  should  have  had  notice  of  the  particular 
method  in  which  an  accident  would  occur,  if  the  possibility  of  an  acci- 
dent was  clear  to  the  ordinarily  prudent  eye.  Washington  &  George- 
town R.  R.  Co.  V.  Hickey,  166  U.  S.  521,  526,  527. 

If  there  was  negligence  it  very  properly  could  be  found  to  have  been 
the  proximate  cause  of  the  death.  See  Milwaukee  &  St.  Paul  Ry.  Co. 
V.  Kellogg,  94  U.  S.  469.  Even  if  it  were  true  that  the  neglect  was 
merely  a  passive  omission,  the  deceased  was  invited  into  the  elevator 
and  the  principle  of  the  trap  cases  would  apply.  Corby  v.  Hill,  4  C.  B. 
(N.  S.)  556,  563.  Sweeney  v.  Old  Colony  &  Newport  R.  R.  Co.,  10 
Allen,  368,  374.  But  that  is  not  the  case.  The  defendant  is  sued  for 
having  crushed  the  head  of  the  deceased  by  forces  that  he  put  in 
motion.  He  replies  that  it  would  not  have  happened  but  for  the  un- 
foreseen fall  of  the  deceased  without  the  defendant's  fault,  and  to  this 
the  plaintiff  rejoins  and  the  jury  has  found  that  the  defendant  was 
bound  to  take  the  easy  precaution  which  he  had  provided  against  any 
and  all  ways  by  which  a  passenger's  body  could  get  outside  the  car 
while  it  was  going  up.  Hayes  v.  Michigan  Central  R.  R.  Co.,  HI 
U.  S.  228,  241.  Choctaw,  Oklahoma  &  Gulf  R.  R.  Co.  v.  Holloway, 
191  U.  S.  334,  339.  The  whole  question  comes  down  to  whether  we 
are  prepared  to  say  as  matter  of  law  against  the  finding  of  the  jury  that, 
in  an  elevator  constructed  as  this  was  wath  a  special  source  of  danger 
in  the  shaft  outside  the  ciir,  to  require  the  defendant  to  guard  the 
door  space  in  transitu,  at  his  peril,  is  too  strict  a  rule.  We  cannot  go 
so  far.    McDonald  v.  Toledo  Consol.  S.  Ry.  Co.,  74  Fed.  Rep.  104,  109. 

There  was  perhaps  evidence  sufficient  to  warrant  a  finding  that 
there  was  negligence  in  not  stopping  the  car  after  the  fall  and  before 
the  harm  was  done,  and  a  finding  on  that  ground  would  not  open  the 


232  ROLLINS    V.    CENTRAL    MAINE    POWER    CO.  [CHAP.  III. 

questions  that  have  been  discussed;  but  we  have  preferred  to  deal 
with  the  case  on  the  matters  principally  argued,  as  they  seem  to  offer 
the  most  obvious  reasons  for  the  verdict,  and  therefore  have  assumed 
that  the  jury  found  the  facts  and  standard  of  conduct  to  be  as  we  have 
supposed. 

Judgment   affirmed. 


ROLLINS  V.   CENTRAL  MAINE  POWER  CO. 
Supreme  Judicial  Court  of  Maine,  1913. 

[Reported  88  Atl.  Rep.  86.] 

Savage,  C.  J.  Exceptions  to  the  overruling  of  the  defendant's 
demurrer.  In  the  declaration  it  is  alleged  in  substance,  among  other 
things,  that  the  plaintiff  on  the  day  of  the  injury  complained  of  was  a 
conductor  on  one  of  the  cars  of  an  electric  railway;  that  Depot  Square 
in  Gardiner  was  the  terminal  point  of  his  car;  that  the  defendant 
company  had  pre\'iously  located  and  was  then  maintaining  an  electric 
arc  lamp  less  than  fourteen  feet  from  the  ground,  and  so  placed,  with 
reference  to  the  stopping  place  of  the  plaintiff's  car,  that  in  turning  the 
trolley  pole  to  prepare  for  the  return  trip  there  was  great  danger  of  the 
pole's  breaking  the  glass  globe  around  the  lamp;  and  that  in  so  placing 
the  light  the  defendant  was  negligent.  It  is  further  alleged  that  the 
plaintiff,  on  the  day  in  question,  in  the  course  of  his  duty  was  attempting 
"  to  turn  the  trolley  pole  on  the  car  from  one  end  to  the  opposite  end, 
and,  while  so  doing,  and  while  in  the  exercise  of  ordinary  care,  the 
trolley  pole  suddenly,  with  great  force  and  violence,  came  in  contact 
with  the  glass  globe  of  the  arc  light  negligently  located  as  aforesaid, 
breaking  the  globe  so  that  a  portion  of  it  falling  struck  him  in  the  eye, 
and  entirely  destroyed  the  sight  of  it." 

The  point  taken  under  the  demurrer  is  that,  even  if  the  defendant 
was  negligent,  the  declaration  shows  on  its  face  that  its  negligence  was 
not  the  proximate  cause  of  the  plaintiff's  injury.  It  is  contended  that 
the  plaintiff's  own  act  by  which  the  trolley  pole  struck  the  globe  with 
"great  \-iolence"  was  the  true  proximate  cause.  We  do  not  think 
the  point  is  well  taken. 

Of  course,  if  the  plaintiff  negligently  handled  the  trolley  pole  so 
as  to  cause  or  allow  it  to  strike  the  globe,  he  cannot  recover  in  this  suit. 
But  that  is  a  question  which  cannot  be  settled  on  demurrer.  The 
plaintiff  alleges  that  he  was  in  the  exercise  of  due  care.  And  the 
fact  that  the  trolley  pole  struck  the  globe  with  great  \'ioIence  may 
have  been  due  to  the  plaintift''s  negligence,  and  it  may  not  have  been. 
That  can  be  determined  only  upon  a  trial  on  the  merits. 

Upon  the  allegations,  we  think  that  the  turning  of  the  pole  by  the 
plaintiff  should  be  called  the  occasion,  and  not  the  proximate  cause,  of 


SECT.  IV.]       SCHOULTZ  V.  ECKHARDT  MANUFACTUEING   CO.  233 

his  injury.  Pollard  v.  Maine  Central  R.  R.  Co.,  87  Me.  51,  32  Atl.  735. 
It  is  no  more  an  intervening  cause  than  is  the  walking  of  a  man  who 
steps  into  an  unguarded  hole  in  a  sidewalk,  or  the  act  of  a  workman 
in  his  work  who  comes  in  contact  with  a  buzz  saw.  Suppose  the  lamp 
had  been  hung  so  low  that  a  motorman  dri\'ing  his  car,  or  a  traveler 
driving  in  the  street,  had  hit  it.  Can  it  be  said  that  the  dri\4ng  in  either 
case  was  the  intervening,  efficient  cause?  By  no  means.  Here  nothing 
intervened.  The  turning  of  the  trolley  pole  furnished  the  occasion  for 
the  true  proximate  cause,  the  alleged  position  of  the  lamp,  to  become 
operative. 

The  two  cases  cited  by  the  defendant,  Nelson  v.  Narragansett  Elec- 
tric Lighting  Co.,  26  R.  I.  258,  58  Atl.  802,  67  L.  R.  A.  116,  106  Am. 
St.  Rep.  711,  and  Leeds  v.  N.  Y.  Telephone  Co.,  178  N.  Y.  118,  70 
N.  E.  219,  are  not  in  point.  In  each  of  the  cases  the  intervening  cause, 
which  was  held  to  be  the  proximate  cause  of  the  injury,  was  the  wrong- 
ful, negligent  act  of  a  third  party.  See,  also,  Currier  v.  McKee,  99 
Me.  367,  59  Atl.  442,  3  Ann.  Cas.  57. 

Exceptions  overruled.^ 


SCHOULTZ  V.   ECKHARDT  MANUFACTURING  CO. 

Supreme  Court  of  Louisiana,  1904. 

[Reported  112  La.  568.] 

Provosty,  J.  Plaintiff  was  an  experienced  workman,  of  15  years' 
standing.  He  was  molder  and  planer  foreman,  and  in  that  capacity 
had  charge  of  the  workmen,  machinery,  etc.,  on  one  of  the  floors  of 
defendant's  sash  and  door  factory.  He  states  that  his  further  duty 
was  "to  fix  belts  and  keep  the  machines  in  running  order."  He  had 
been  in  defendant's  employ  some  14  months,  discharging  those  duties, 
when  he  was  called  upon  to  mend  one  of  the  belts  of  one  of  the  saw 
tables,  and  had  four  of  his  fingers  cut  off  in  attempting  to  do  the 
work.  As  soon  as  his  hand  got  well,  he  went  back  to  his  same  work  in 
defendant's  mill,  at  the  same  wages,  and  worked  for  some  time,  until 
he  quit  of  his  own  accord.  During  this  time  he  acknowledged  that  he 
himself  was  to  blame  for  the  accident.  He  denies  that  he  made  such 
admission,  but  three  witnesses  testify  to  it.  Afterwards  he  changed 
his  mind  and  brought  this  suit,  11  months  after  the  accident. 

The  saw  table  in  question  is  5  feet  long,  3  feet  wide,  and  3  feet  6 
inches  high.  It  is  a  substantial  structure,  the  framework  underneath 
consisting  of  three  thick  uprights  on  each  side,  braced  at  top  and 
bottom  by  thick  crosspieces,  both  on  the  sides  and  on  the  ends.    The 

1  See  Cleveland  C.  C.  &  S.  L.  Ry.  v.  Patterson,  37  Ind.  App.  617,  75  N.  E.  857.— 
Ed. 


234  SCHOULTZ   V.  ECKHARDT    MANUFACTUKING   CO.      [CHAP.  III. 

saw  —  a  circular  saw,  14  inches  in  diameter  —  is  under  the  table,  the 
blade  protruding  througli  a  longitudinal  slit  in  the  middle  of  the  table. 
The  belt  to  be  mended  is  under  the  table,  to  one  side,  and  near  one  of 
the  ends.  It  could  be  reached  for  mending,  without  any  danger  from 
the  saw,  from  that  side  of  the  table  on  which  it  was,  and  from  either 
end  of  the  table.  Plaintiff  chose  the  other  side  of  the  table,  from 
which  he  could  not  reach  the  belt  \\'ithout  stretching  his  arms  across 
the  line  of  the  saw.  He  got  down  on  his  knees,  and  put  his  head  and 
arms  into  the  framework  of  the  table.  The  saw  was  then  above  him, 
to  his  right.  What  he  did  while  in  this  position,  and  what  happened, 
we  wnll  let  him  describe  himself:  "I  got  hold  of  the  belt  and  com- 
menced to  lace  it,  and  I  was  pulling  on  it,  when  the  lacing  string  got 
caught  in  some  way,  and  I  could  not  pull  it  very  easily.  So  I  took  a 
good  hold  of  it,  and  I  wrapped  it  round  my  hand  or  fingers  as  a  man 
usually  does  when  he  wants  to  pull  hard,  and  I  pulled  with  all  my 
might  with  my  hand,  holding  it  down  with  the  other;  and  when  I 
pulled  so  hard  the  lacing  string  broke,  and  it  broke  with  such  force 
that  my  hand  flew  up  and  struck  against  the  saw,  that  was  running, 
and  it  took  my  fingers  off." 

The  negligence  charged  against  defendant  is  alleged  to  have  con- 
sisted in: 

(1)  That  the  saw  was  running  at  an  excessive  rate  of  speed. 

(2)  That  it  was  not  properly  hooded  or  guarded. 

(3)  That  the  machine  was  not  geared  with  a  countershaft,  so  that 
it  could  be  stopped  without  stopping  the  entire  machinery  of  the  mill. 

(4)  That  the  place  was  not  sufficiently  lighted. 

(5)  That  rubbish  had  been  suffered  to  accumulate  near  the  table, 
whereby  access  to  the  belt  was  cut  off  from  the  safe  side  of  the  table, 
and  plaintiff  was  put  under  the  necessity  of  doing  the  work  from  the 
dangerous  side. 

Plaintiff's  argument  on  the  first  ground  is  that,  if  the  speed  of  the 
machine  had  been  less,  the  belt  might  have  held  out  until  a  time  when 
there  might  have  been  no  rubbish  to  prevent  his  doing  the  work  from 
the  safe  side,  and  that  in  that  event  he  would  have  escaped  injury. 
Here,  in  truth,  is  a  string  of  conjectures.  But  assuming  them  all  to  be 
established  facts,  the  simple  legal  answer  is  that,  after  the  lielt  had 
given  way,  and  thereby  lost  its  connection  with  the  machine,  thfe  speed 
of  the  machine  ceased  to  be  an  element  in  the  problem,  and  that 
therefore,  as  a  cause  of  the  injury,  the  breaking  of  the  belt  stands  in 
the  same  relation  to  what  followed  as  does  any  other  antecedent, 
conditional  fact  —  as  the  fact,  for  instance,  that  plaintiff"  was  born. 
Had  the  belt  not  broken  at  the  time  it  did,  there  would  have  been  at 
that  time  no  belt  to  mend,  and  no  injury;  and  so,  had  plaintiff  never 
been  born,  there  would  have  been  no  plaintiff,  and  no  injury.  One  group 
of  causes  in  the  chain  of  causation  culminated  in  the  breaking  of  the 
belt.     Another  group  was  set  in  motion  by  the  attempt  to  mend  the 


I 


SECT.  IV.]      SCIIOULTZ  V.  ECKHARDT   MANUFACTUEIXG    CO.  235 

belt.  Juridically  the  two  groups  are  entirely  disconnected,  and  the 
law  looks  only  to  the  latter  —  in  other  words,  to  the  immediate  or 
proximate  cause.    Schwartz  v.  Railroad  Co.,  110  La.  534,  34  South.  667. 

The  second  ground  is  equally  without  merit.  The  evidence  shows 
—  and  besides  the  fact  is  of  itself  patent  —  that  the  framework  of  the 
table  is  a  s  ifficient  guard  to  the  portion  of  the  saw  under  the  table, 
which  is  the  part  that  did  the  injury.  It  would  be  exacting  too  much 
of  an  employer  to  require  him  to  protect  such  inner  and  inaccessible 
parts  of  machinery,  with  which  no  one  can  come  in  contact  except  by 
such  imprudent  conduct  as  that  of  plaintiff  in  this  case. 

As  to  the  third  ground,  nothing  shows  that  it  is  negligence  not  to 
gear  machines  like  the  one  in  question  with  a  countershaft.  The  testi- 
mony would  go  to  show  that  machines  which  run  continually  are  not 
usually  so  geared,  and  that  the  machine  in  question  ran  continually. 
Furthermore,  the  testimony  shows  that  this  machine  is  provided  with 
an  idler,  by  means  of  which  it  can  be  disconnected  from  the  rest  of 
the  machinery  of  the  mill  just  as  effectually  as  by  means  of  a  counter- 
shaft. Beyond  this,  it  appears  that  plaintiff  had  the  right  to  stop  the 
machinery  of  the  mill,  if  necessary  to  avoid  danger  in  the  work  of 
repair.  If,  therefore,  he  incurred  any  extra  risk,  he  did  so  voluntarily. 
If  there  is  a  safe  and  an  unsafe  way  of  doing  a  thing,  and  the  servant 
knows  it,  or  ought  to  know  it,  and  chooses  the  unsafe,  and  is  injured, 
he  cannot  recover  against  the  master  for  the  injury.  Jenkins  v.  Ma- 
ginnis  Mills,  51  La.  Ann.  1011,  25  South.  643. 

The  complaint  as  to  the  want  of  sufficient  light  has  not  reference  to 
sufficient  light  for  the  regular  operation  of  the  mill,  but  to  sufficient 
light  for  doing  with  safety  the  work  of  mending  the  belt.  Such  being 
the  nature  of  the  complaint,  the  answer  to  it  is  obvious.  The  master 
is  not  bound  to  keep  his  premises  so  lighted  that  any  and  all  repair 
work  may  be  done  without  the  necessity  of  procuring  extra  light.  When 
plaintiff  undertook  to  do  this  repair  work,  it  was  for  liim  to  know 
whether  he  had  enough  light  to  do  it  in,  and  to  procure  additional 
light  if  needed.  He  was  not  a  green  hand,  uninformed  of  the  nature 
of  the  work  he  was  called  upon  to  do,  but  he  was  the  person  on  his 
floor  supposedly  best  informed  in  that  regard.  To  him  belonged  the 
duty,  in  his  own  words,  "to  fix  belts  and  keep  the  machines  in  run- 
ning shape." 

If  the  rubbish  was  in  plaintiff's  way  for  repairing  the  machine  with 
safety,  he  should  have  asked  that  it  be  removed,  or  should  himself 
have  had  it  removed.  He  had  ample  authority  for  the  purpose.  In 
fact,  it  was  his  duty  to  see  to  the  removal  of  this  rubbish  if  it  stood  in 
anybody's  way. 

The  judgment  appealed  from  is  set  aside,  and  the  suit  of  plaintiff  is 
dismissed,  with  costs  in  both  courts.^ 

'  See  Evansville  H.  &  S.  Co.  v.  Bailey,  (Ind.  App.)  84  N.  E.  549.  —Ed. 


236  REGINA   V.    PITTS.  [CHAP.  IIU 

REGINA   V.   PITTS. 

Devonshire  Assizes.     1842. 

[Reported  1  C.  Sp  M.  284.] 

Murder.  The  indictment  charged  the  prisoner  in  one  count  with 
having  caused  the  death  of  the  deceased  by  beating  and  wounding ;  in 
another  by  drowning :  in  other  counts,  the  death  was  alleged  to  have 
been  occasioned  by  the  deceased  in  slipping  and  falling  into  the  water, 
in  endeavouring  to  escape  from  an  assault  made  with  intent  to  commit; 
murder,  and  from  an  assault  made  with  intent  to  commit  robbery. 

The  body  of  the  deceased  was  found  in  the  river  at  Exeter,  and  it 
bore  marks  of  violence,  but  not  of  violence  sufficient  to  occasion  the 
death,  which  appeared  from  the  symptoms  to  have  been  produced  by 
drowning.  There  were  marks  of  a  struggle  on  the  ground,  and  the 
stick  and  gloves  of  the  deceased  were  discovered  at  no  great  distance 
on  the  banks  of  the  river,  but  in  a  place  from  which  it  was  impossible 
that  the  body  could  have  floated  to  the  spot  where  it  was  found.  The 
deceased  had  been  drinking  with  the  prisoner  and  another  person  on 
the  previous  evening,  and  had  been  seen,  at  a  late  hour,  followed  by 
both  in  a  suspicious  manner  towards  his  own  house.  When  the 
prisoner  was  apprehended,  the  deceased's  watch  was  found  upon  him, 
and  there  were  marks  of  blood  on  his  coat.  The  other  person  impli- 
cated in  the  transaction  was  admitted  queen's  evidence,  and  deposed  to 
the  fact,  that  they  two  had  inveigled  the  deceased  to  the  water's  edge; 
that  the  prisoner  endeavoured  to  rob  him  ;  that  a  scuffle  took  place,  and 
that  the  prisoner  afterwards  told  him  that  he  had  pushed  the  deceased 
into  the  water. 

Erskine,  J.  (in  summing  up).  —  A  man  may  throw  himself  into  a 
river  under  such  circumstances  as  render  it  not  a  voluntary  act ;  by 
reason  of  force,  applied  either  to  the  body  or  the  mind.  It  becomes 
then  the  guilt}'  act  of  him  who  compelled  the  deceased  to  take  the  step. 
But  the  apprehension  must  be  of  immediate  violence,  and  well  grounded, 
from  the  circumstances  b\'  which  the  deceased  was  surrounded  ;  not  that 
you  must  be  satisfied  that  there  was  ?i'o  other  way  of  escape,  but  that  it 
was  such  a  step  as  a  reasonable  man  might  take.  Here,  all  the  circum- 
stances show  that,  even  if  the  deceased  did  tlirow  himself  into  the  river, 
it  must  have  been  from  circumstances  arising  out  of  a  scuffle  with  the 
prisoner  or  some  other  person,  or  from  apprehension  of  further  violence. 

The  prisoner  was  acquitted,  but  pleaded  guilty  to  an  indictment  for 
the  robbery  of  the  watch. 


SECT.  IV.] 


JONES  V.    BOYCE. 


237 


JONES  V.   BOYCE. 
Assizes,  1816. 

[Reported  1  Stark.  493.] 

This  was  an  action  on  the  case  against  the  defendant,  a  coach  pro- 
prietor, for  so  neghgently  conducting  the  coach,  that  the  plaintiff,  an 
outside  passenger,  was  obliged  to  jump  off  the  coach,  in  consequence 
of  which  his  leg  was  broken. 

It  appeared  that  soon  after  the  coach  had  set  off  from  an  inn,  the 
coupling  rein  broke,  and,  one  of  the  leaders  being  ungovernable,  whilst 
the  coach  was  on  a  descent,  the  coachman  drew  the  coach  to  one  side 
of  the  road,  where  it  came  in  contact  with  some  piles,  one  of  which 
it  broke,  and  afterwards  the  wheel  was  stopped  by  a  post.  Evidence 
was  adduced  to  shew  that  the  coupling  rein  was  defective,  and  that 
the  breaking  of  the  rein  had  rendered  it  necessary  for  the  coachman 
to  drive  to  the  side  of  the  road  in  order  to  stop  the  career  of  the  horses. 
Some  of  the  witnesses  stated  that  the  wheel  was  forced  against  the 
post  with  great  violence;  and  one  of  the  witnesses  stated,  that  at  that 
time  the  plaintiff,  who  had  before  been  seated  on  the  back  part  of  the 
coach,  was  jerked  forwards  in  consequence  of  the  concussion,  and  that 
one  of  the  wheels  was  elevated  to  the  height  of  eighteen  or  twenty 
inches;  but  whether  the  plaintiff  jumped  off,  or  was  jerked  off,  he 
could  not  say.  A  witness  also  said,  I  should  have  jumped  down  had 
I  been  in  his  (the  plaintiff's)  place,  as  the  best  means  of  avoiding 
the  danger.  The  coach  was  not  overturned,  but  the  plaintiff  was 
immediately  afterwards  seen  lying  on  the  road  with  his  leg  broken, 
the  bone  having  been  protruded  through  the  boot. 

Upon  this  evidence.  Lord  Ellenborough  was  of  opinion,  that  there 
was  a  case  to  go  to  the  jury,  and  a  considerable  mass  of  evidence  was 
then  adduced,  tending  to  shew  that  there  was  no  necessity  for  the 
plaintiff  to  jum.p  off. 

Lord  Ellenborough,  in  his  address  to  the  jury,  said:  This  case 
presents  two  questions  for  your  consideration;  first,  whether  the 
proprietor  of  the  coach  was  guilty  of  any  default  in  omitting  to  pro- 
vide the  safe  and  proper  means  of  conveyance,  and  if  you  should  be 
of  that  opinion,  the  second  question  for  your  consideration  will  be, 
whether  that  default  was  conducive  to  the  injury  wliich  the  plaintiff 
has  sustained;  for  if  it  was  not  so  far  conducive  as  to  create  such  a 
reasonable  degree  of  alarm  and  apprehension  in  the  mind  of  the  plain- 
tiff, as  rendered  it  necessary  for  him  to  jump  down  from  the  coach  in 
order  to  avoid  immediate  danger,  the  action  is  not  maintainable. 
To  enable  the  plaintiff  to  sustain  the  action,  it  is  not  necessary  that 
he  should  have  been  thrown  off  the  coach;  it  is  sufficient  if  he  was  placed 


^A 


KwAkVr^.  ^  ki 


238  KEGINA   V.   MARTIN.  [CHAP.  III. 

by  the  misconduct  of  the  defendant  in  such  a  situation  as  obliged 
him  to  adopt  the  alternative  of  a  dangerous  leap,  or  to  remain  at  cer- 
tain peril;  if  that  position  was  occasioned  by  the  default  of  the  de- 
fendant, the  action  may  be  supported.  On  the  other  hand,  if  the 
plaintiff's  act  resulted  from  a  rash  apprehension  of  danger,  which  did 
not  exist,  and  the  injury  which  he  sustained  is  to  be  attributed  to  rash- 
ness and  imprudence,  he  is  not  entitled  to  recover.  The  question  is 
'  whether  he  was  placed  in  such  a  situation  as  to  render  what  he  did  a 
;  prudent  precaution,  for  the  purpose  of  self-preservation. —  His  Lord- 
i  ship,  after  recapitulating  the  facts,  and  commenting  upon  them, 
and  particularly  on  the  circumstance  of  the  rein  being  defective,  added : 
—  If  the  defect  in  the  rein  was  not  the  constituent  cause  of  the  injury, 
the  plaintiff  \\i\\  not  be  entitled  to  your  verdict.  Therefore  it  is  for 
your  consideration,  whether  the  plaintiff's  act  was  the  measure  of  an 
/  unreasonably  alarmed  mind,  or  such  as  a  reasonable  and  prudent  mind 
vould  have  adopted.  If  I  place  a  man  in  such  a  situation  that  he  must 
adopt  a  perilous  alternative,  I  am  responsible  for  the  consequences; 
if,  therefore,  you  should  be  of  opinion,  that  the  reins  were  defective, 
did  this  circumstance  create  a  necessity  for  what  he  did,  and  did  he  use 
proper  caution  and  prudence  in  extricating  himself  from  the  apparently 
impending  peril.  If  you  are  of  that  opinion,  then,  since  the  original 
fault  was  in  the  proprietor,  he  is  liable  to  the  plaintiff  for  the  injury 
which  his  misconduct  has  occasioned.  This  is  the  first  case  of  the 
kind  which  I  recollect  to  have  occurred.  A  coach  proprietor  certainly 
is  not  to  be  responsible  for  the  rashness  and  imprudence  of  a  passenger; 
it  must  appear  that  there  existed  a  reasonable  cause  for  alarm. 
The  jury  found  a  verdict  for  the  plaintiff. —  Damages  300L^ 


REGINA   V.   MARTIN. 

Court  for  Crown  Cases  Reserved.     1881. 

[Reported  8  Q.  B.  D.  54.] 

At  the  general  quarter  sessions  for  the  borough  of  Leeds,  held  on 
the  4th  of  Juh',  1881,  Edwin  Martin  was  tried  upon  an  indictment 
charging  that  he  did  unlawfully  and  maliciously  inflict  grievous  bodily 
harm  upon  George  Pybus  against  the  form  of  the  statute,  etc.,  and,  b}^ 
a  second  count,  that  he  did  unlawfulh'  and  maliciously  inflict  grievous 
bodil}-  harm  upon  Martin  Dace}'  against  the  form  of  the  statute,  etc. 

The  indictment  was  framed  on  the  20th  section  of  24  &  25  Vict, 
c.  100. 

The  evidence  for  the  prosecution  was  to  the  following  effect:  — 

1  See  also  Yongue  t.  St.  Louis  &  S.  F.  R.  R.,  133  Mo.  App.  141,  112  S.  W.  985; 
St.  .loseph  &  G.  I.  R.  R.  v.  Hedge,  44  Neb.  448,  62  N.  W.  887;  Quigley  v.  Delaware 
&  H.  C.  Co..  142  Pa.  .388,  21  Atl.  827.  — Ed. 


SECT.  IV.]  REGINA   V.   MARTIN.  239 

The  gallen*  in  the  Theatre  Royal  at  Leeds  is  reached  from  the  street 
by  a  stone  staircase,  which  is  lighted  b}-  three  gaslights,  of  which  one 
is  at  the  top,  one  on  a  landing  about  the  middle,  and  the  third  over  the 
door  of  the  pay  office,  which  is  at  the  bottom  of  the  stairs.  These 
lights  are  all  fastened  to  the  walls  at  the  height  of  seven  feet  or  there- 
abouts above  the  stairs  or  landings.  Between  the  street  and  the 
bottom  of  the  staircase  there  are  a  pair  of  folding-doors  opening  out- 
wards into  the  street.  Each  of  these  doors  is  divided  into  halves,  of 
which  the  halves  nearest  to  the  door-posts  or  walls  on  each  side  can  be 
kept  closed  by  means  of  strong  iron  bars  let  into  sockets  in  the  stone- 
work of  the  staircase,  and  connected  with  the  doors  by  iron  bolts. 
These  bars  are  moveable.  The  practice  was  to  open  only  the  central 
halves  of  the  doors  whilst  the  audience  were  assembling  and  passing 
the  pay  office,  so  as  to  limit  the  number  of  those  who  could  pass  in  at 
the  same  time,  and  to  remove  the  iron  bars  and  open  the  whole  of  the 
doors  some  time  before  the  conclusion  of  the  performance,  so  as  to 
allow  the  audience  to  pass  out  into  the  street  more  quickly. 

It  was  pi'oved  that  on  the  night  of  the  30th  of  April,  1881,  shortl}' 
before  the  conclusion  of  the  performance,  the  folding-doors  were 
opened  to  their  full  extent,  and  the  iron  bars  placed  against  the  wall  of 
the  staircase  to  the  right  hand  of  a  person  leaving  the  theatre,  and 
close  to  the  door,  according  to  the  usual  practice. 

The  evidence  shewed  that  the  gallery  on  this  night  was  filled  to  the 
extent  of  about  three-fourths  of  its  total  capacity. 

The  defendant  (who  was  well  acquainted  with  the  theatre,  having 
assisted  on  several  occasions  as  a  supernumerary)  was  proved  to  have 
been  in  the  gallery  on  this  night,  and  to  have  been  the  first,  or  almost 
the  first,  to  leave  it,  at  the  conclusion  of  the  performance.  It  was 
proved  that  he  ran  quickl\'  down  the  gallery  staircase,  and  that  as  he 
did  so  he  reached  up  with  his  hand  and  put  out  the  gaslight  on  the 
middle  landing,  and  also  that  over  the  pay  office. 

It  was  also  proved  that  as  he  passed  out  into  the  street  he  took  one 
of  the  iron  bars  which  was  leaning  against  the  wall  close  to  the  door  on 
his  right  hand  side,  and  threw  it  or  placed  it  parti}'  across  the  doorway. 
Almost  immediately  after  this  had  been  done  by  the  defendant  the 
whole  of  the  folding-doors  became  closed.  The  evidence  as  to  how  this 
occurred  was  extremely'  vague.  The  result  however  of  the  doors  being 
closed  and  the  lower  lights  extinguished  was  to  leave  the  lower  part  of 
the  gallery  stairs  in  almost  entire  darkness. 

Almost  immediately  after  the  lights  were  put  out,  a  panic  seized  the 
audience,  who  rushed  down  stairs  and  endeavoured  to  find  their  way 
into  the  street.  In  consequence  of  the  presence  of  the  iron  bar.  which 
the  defendant  had  placed  or  thrown  across  one  part  of  the  doorway, 
and  of  the  doors  being  shut,  it  was  some  time  before  any  of  them  could 
reach  the  street,  and  in  the  meantime  the  pressure  from  behind  forced 
those  in  front  against  and  under  the  iron  bar  and  against  the  doors,  and 
a  large  number  of  persons  were  very  seriously  injured  and  had  to  be 


240 


KEGINA   V.   MARTIN. 


[chap.  III. 


removed  to  the  infirmary.  Amongst  those  injured  were  George  Pybus 
and  Martin  Dace}'.  The  medical  evidence  was  to  the  effect  that  George 
Pj'bus  shewed  signs  of  fracture  of  the  base  of  the  skull,  which  was 
probabl}-  caused  by  his  slipping  and  falling  backwards  as  he  was  run- 
ning down  the  stairs  after  the  gaslights  had  been  extinguished,  and  so 
striking  his  head  upon  the  stairs,  and  that  Martin  Dacey  was  suffering 
from  collapse,  the  result  of  partial  suffocation  arising  from,  the  pressure 
to  which  he  had  been  subjected  in  the  crowd  on  or  at  the  foot  of  the 
stairs. 

It  was  clearl}'  proved  that  the  defendant  was  on  the  stage  of  the 
theatre  after  the  accident  assisting  the  injured  persons  who  had  been 
brought  there.  Tliere  was  no  evidence  of  any  previous  quarrel  or  dis- 
pute between  him  and  the  managers  or  officials  of  the  theatre,  or 
between  him  and  an}*  person  in  the  gallery. 

The  defence  set  up  for  the  defendant  was  an  alibi. 

In  summing  up  tlie  evidence  to  the  jury  the  learned  Recorder  directed 
them  that  malice  was  an  essential  ingredient  in  the  offence  charged 
against  the  defendant,  and  intimated  to  them  that  if  they  were  of 
opinion  that  the  conduct  of  the  defendant  in  extinguishing  the  lights 
and  throwing  the  iron  bar  across  the  doorway  amounted  to  nothing 
more  than  a  mere  piece  of  foolish  mischief  they  might  acquit  him  ;  but 
that  if  the}'  believed  the  acts  were  done  with  a  deliberate  and  malicious 
intention  they  ought  to  convict. 

The  following  questions  were  left  to  the  jurj' : 

1.  Did  the  prisoner  extinguish  the  gaslights,  or  either  of  them  ? 

2.  Did  he  place  or  throw  the  bar  across  the  doorway  in  such  a 
manner  as  to  make  the  means  of  exit  more  difficult? 

3.  If  he  did  extinguish  the  lights  or  either  of  them,  did  he  do  so 
with  the  intention  of  causing  terror  and  alarm  in  the  minds  of  the 
persons  leaving  the  gallery? 

4.  If  he  did  throw  or  place  the  bar  across  the  doorway,  did  he  do  so 
with  the  intention  of  wilfully  obstructing  the  means  of  exit  from  the 
gallery  ? 

5.  Were  Pybus  or  Dace}",  or  either  of  them,  injured  by  reason  of 
any  of  the  acts  of  the  prisoner?  and  if  so  by  which  of  them? 

The  jury  found  the  defendant  guilty,  answered  the  first  four  questions 
in  the  affirmative,  and  stated  that  they  found  that  both  Pybus  and 
Dacey  were  injured  by  reason  of  each  of  the  acts  of  the  defendant 
mentioned  in  the  first  and  second  questions. 

The  question  for  the  consideration  of  the  Court  was,  whether  the 
defendant  was  properly  convicted  on  the  above  facts  and  finding  of 
the  jury. 

No  counsel  appeared. 

Lord  Coleridge,  C.  J.  I  am  unable  to  entertain  any  doubt  as  to 
the  propriety  of  this  conviction.  The  prisoner  was  indicted  under  24 
&  25  Vict.  c.  100,  s.  20,  which  enacts  that  "  whosoever  shall  unlawfully 


SECT.  IV.]  TUTTLE   V.    ATLANTIC   CITY   RAILROAD   CO.  241 

and  maliciously  wound,  or  inflict  any  grievous  bodily  harm  upon  any 
other  person,  either  with  or  without  an}-  weapon  or  instrument,  shall 
be  guilt}-  of  a  misdemeanor,  etc.'' 

The  learned  judge  after  stating  the  facts,  continued  :  Upon  these 
facts  the  prisoner  was  convicted,  and  the  jury  found  all  that  was  neces- 
sary to  sustain  the  conviction.  The  prisoner  must  be  taken  to  have 
intended  the  natural  consequences  of  that  which  he  did.  He  acted 
"  unlawfull}'  and  maliciously,"  not  that  he  had  any  personal  malice 
against  the  particular  individuals  injured,  but  in  the  sense  of  doing  an 
unlawful  act  calculated  to  injure,  and  by  which  others  were  in  fact 
injured.  Just  as  in  the  case  of  a  man  who  unlawfulh-  fires  a  gun 
among  a  crowd,  it  is  murder  if  one  of  the  crowd  is  thereb}-  killed.  The 
prisoner  was  most  properh^  convicted. 

Field  and  Hawkins,  JJ.,  concurred. 

Stephen,  J.  I  am  entireh'  of  the  same  opinion,  but  I  wish  to  add 
that  the  Recorder  seems  to  have  put  the  case  too  favourably  for  the 
prisoner,  for  he  put  it  to  the  jury  to  consider  whether  the  prisoner  did 
the  act  "  as  a  mere  piece  of  foolish  mischief."  Now,  it  seems  to  me, 
that  if  the  prisoner  did  that  which  he  did  as  a  mere  piece  of  foolish 
mischief  unlawfully  and  without  excuse,  he  did  it  "  wilfully,"  that  is 
"maliciously,"  w-ithiu  the  meaning  of  the  statute.  I  think  it  important 
to  notice  this  as  the  word  "malicious"  is  capable  of  being  misunder- 
stood. Lord  Blackburn  (then  Mr.  Justice  Blackburn)  in  the  cases  of 
Reg.  V.  Ward,  Law  Rep.  1  C.  C.  R.  356,  360,  and  Reg.  r.  Pembliton, 
Law  Rep.  2  C.  C.  R.  119,  122,  lays  it  down  that  a  man  acts  "mali- 
ciousl}'"  when  he  wilfully  and  without  lawful  excuse  does  that  which 
he  knows  will  injure  another. 

Cave,  J.,  concurred.  Conviction  affinned. 


TUTTLE  V.   ATLANTIC   CITY  RAILROAD   CO. 
Court  of  Errors  &  Appeals  of  New  Jersey,  1901. 

[Reported  66  N.  J.  L.  327.] 

Vroom,  J.  The  writ  of  error  in  this  cause  brings  up  the  record  of 
a  suit  brought  in  the  Supreme  Court  and  tried  at  the  Camden  Circuit 
Court.  The  defendant,  the  Atlantic  City  Railroad  Company,  main- 
tained a  freight  yard  on  the  south  side  of  Mechanic  Street,  in  the 
city  of  Camden,  and  on  the  25th  day  of  September,  1899,  while  a  fly- 
ing drill  was  being  made,  one  of  the  cars  was  derailed  and  dashed 
across  Mechanic  Street,  over  two  curbstones  and  two  trolley  tracks, 
and  broke  through  the  front  of  the  house  opposite.  No.  293,  belonging 
to  a  Mrs.  Brennan.     At  the  time  of  the  accident,  Mrs.  Tuttle,  one  of 


242  TUTTLE   V.    ATLANTIC   CITY    EAILKOAD    CO.        [CHAP.   III. 

the  plaintiffs,  was  on  the  sidewalk  near  the  Brennan  house,  and 
looking  she  saw  the  car  coming  across  the  street  at  full  speed;  becom- 
ing frightened  at  the  noise,  she  started  to  run,  and  when  three  or 
four  doors  below  fell  and  injured  her  left  knee. 

At  the  close  of  the  plaintiff's  case  a  motion  for  a  non-suit  was  made 
on  the  part  of  the  defendant,  upon  the  ground  that,  if  any  negligent 
conduct  had  been  proved  on  the  part  of  the  defendant  by  reason  of 
this  car  having  gotten  away  from  where  it  belonged,  the  plaintiff  was 
guilty  of  contributory  negligence  in  going  away  from  a  place  of  safety 
to  a  place  of  insecurity;  that  she  was  at  a  safe  distance  from  the  car, 
and  there  was  no  occasion  for  her  to  remove  from  it.  The  testimony, 
however,  of  tlie  plaintiff  was  that  she  was  in  front  of  Mrs.  Brennan's 
door,  or  had  just  passed  it,  when  she  saw  the  car  coming  over,  and  it^ 
was  further  disclosed  by  the  testimony  that  this  car,  in  coming  across 
the  street,  was  not  running  on  any  track.  Is  it  reasonable  even  to 
suppose  that  the  plaintiff  could  have  had  any  means  of  knowing  the 
direction  the  car  would  take;  she  was  rightfully  on  the  street,  and  the 
unusual  sight  of  a  car  crashing  across  the  street  at  full  speed  precluded 
any  possibility  of  reflection  as  to  the  best  thing  to  do.  Acting  under 
the  impulse  of  fear,  she  ran,  and  just  as  the  car  crashed  into  the  Brennan 
house  she  fell. 

The  motion  to  non-suit  was  denied,  and  the  trial  resulted  in  a  verdict 
for  the  plaintiffs. 

The  real  question  in  issue  in  the  case  and  to  be  determined  by  the 
jury  was  whether  the  plaintiff  (Mrs.  Tuttle),  seeing  the  car  approach- 
ing at  great  speed  across  this  street,  was  justified  in  running  to  escape 
from  what  she  supposed  was  an  imminent  danger. 

In  the  case  of  Stokes  v.  Saltonstall,  13  Pet.  181,  which  was  an  action 
brought  to  recover  damages  sustained  by  the  wife  of  the  plaintiff  by 
the  upsetting  of  a  stage  coach  in  which  she  was  a  passenger,  the  ques- 
tion was  whether  the  stage  was  upset  by  the  negligence  of  the  driver 
or  by  the  act  of  the  plaintiff  and  his  wife  in  rashly  and  improperly 
springing  from  it.  The  court  held  that  "if  the  want  of  proper  skill 
or  care  of  the  driver  placed  the  passengers  in  a  state  of  peril,  and  they 
had  at  that  time  a  reasonable  ground  for  supposing  that  the  stage 
would  upset,  or  that  the  driver  was  incapable  of  managing  his  horses, 
the  plaintiff  was  entitled  to  recover;  although  the  jury  may  believe, 
from  the  position  in  which  the  stage  was  placed  from  the  negligence 
of  the  driver,  the  attempt  of  the  plaintiff  and  his  wife  to  escape  may 
have  increased  the  peril  or  even  caused  the  stage  to  upset,  and  although 
they  also  find  that  the  plaintiff"  and  his  wife  would  probably  have  sus- 
tained little  or  no  injury  if  they  had  remained  in  the  stage." 

And  in  the  case  of  Jones  v.  Boyce,  1  Stark.  402,  which  was  an  action 
against  a  coach  proprietor  for  so  negligently  conducting  the  coach  that 
the  plaintiff,  an  outside  passenger,  was  obliged  to  jump  off  the  coach, 
in  consequence  of  which  his  leg  was  broken.  Lord  Ellenborough  held: 


SECT.  IV.]  TUTTLE    V.    ATLANTIC    CITY   RAILROAD   CO.  243 

"To  enable  the  plaintiff  to  sustain  the  action  it  is  not  necessary  that 
he  should  have  been  thrown  off  the  coach;  it  is  sufficient  if  he  was  placed, 
by  the  misconduct  of  the  defendant,  in  such  a  situation  as  obliged 
him  to  ar'opt  the  alternative  of  a  dangerous  leap,  or  to  remain  at  a 
certain  peril.  On  the  other  hand,  if  the  plaintiff's  act  resulted  from 
a  rash  apprehension  of  danger,  which  did  not  exist,  and  the  injury  he 
sustained  is  to  be  attributed  to  rashness  and  imprudence,  he  is  not 
entitled  to  recover." 

The  doctrine  is  concisely  stated  in  1  Shearm.  &  R.  Negl.  *89: 
*'  If  one  is  placed,  by  the  negligence  of  another,  in  such  a  position  that 
he  is  compelled  to  choose  instantly,  in  the  face  of  grave  and  apparent 
peril,  between  two  hazards,  and  he  makes  such  a  choice  as  a  person  of 
ordinary  prudence  placed  in  such  a  position  might  make,  the  fact  that 
if  he  had  chosen  the  other  hazard,  he  would  have  escaped  injury,  is  of 
no  importance." 

The  contention  of  the  defendant  was  that  the  plaintiff  was  in  a  safe 
place,  and  that  while  it  was  true  that  the  sight  of  a  car  coming  as  this 
one  did  was  unusual,  still  that  there  was  nothing  attendant  upon  it 
which  should  lead  one,  in  a  safe  position,  precipitately  to  leave  it. 
The  counsel  for  the  defendant  at  the  trial  requested  the  judge  to  charge 
that  if  the  jury  believe  that  Mrs.  Tuttle  was  at  a  safe  location  before  the 
injury  complained  of,  and  was  afterwards  injured  by  removing  from 
such  safe  place,  she  cannot  recover,  but  this  matter  was  correctly  dis- 
posed of  in  the  charge  that  "  safe  place  is  a  term  which  is  not  easy  to 
define.  To  charge  that  in  this  case  she  was  'in  a  safe  place,'  would  be 
to  charge  that  the  circumstances  which  brought  about  this  fright  and 
terror  under  which  she  seems  to  have  acted  were  not  sufficient  to  war- 
rant her  in  removing  from  that  spot  and  seeking  another  which,  in 
her  judgment,  and  perhaps  a  mistaken  judgment,  she  might  have 
deemed  safer.  There  is  hardly  enough  e\adence  in  this  case  to  know 
whether  it  was  exactly  safe  where  she  stood.  It  turned  out  afterwards 
to  have  been  a  safe  place;  but  who  could  tell  beforehand  how  many 
splinters  from  this  car  would  fly  in  all  directions,  how  many  cobble- 
stones or  other  things  would  fly  around?  You  do  not  know  when  you 
see  a  car  coming  just  what  the  end  will  be,  and  would  naturally  seek, 
possibly,  a  safer  place  than  you  think  you  occupy,  although,  after  it  is 
all  over,  you  may  find  that  where  you  stood  was  a  safe  place." 

This  is  not  a  case  involving  the  question  whether  an  action  can  be 
sustained  for  mental  anguish  or  injury  unaccompanied  by  injury  to 
the  person;  that  this  would  not  afford  a  ground  of  action  is  well  settled. 

In  Canning  v.  Williamstown,  1  Cush.  451,  it  was  held  that  there 
could  be  no  recovery  for  risk  and  peril  which  caused  fright  and  mental 
suffering,  but  those  elements  could  be  considered  when  there  was  bodily 
injury,  however  slight. 

And  in  Victorian  Railway  Commissioners  r.  Coultas,  13  L.  R.  App. 
Cas.  222,  where,  by  a  negligent  act  of  the  defendant,  a  collision  with  a 


244  TUTTLE    V.    ATLANTIC    CITY   RAILROAD    CO.        [CHAP,  IIL 

railway  train  at  a  local  crossing  became  imminent,  but  actual  collision 
was  avoided.  Nervous  shock  or  mental  injury,  caused  by  fright  at 
the  occurrence,  was  held  to  be  too  remote  a  consequence  of  the  defend- 
ant's act  to  be  a  ground  of  damage. 

Mr.  Justice  Gummere,  in  Ward  v.  West  Jersey  and  Seashore  Railroad 
Co.,  36  Vroom,  383,  clearly  states  the  rule  when  he  says :  "  It  seems  to  be 
universally  conceded  that  mere  fright,  from  which  no  physical  suffering 
results,  affords  no  ground  for  action,"  and  he  subsequently  holds  that 
"where  personal  injury  as  well  as  fright  is  produced  by  the  wrongful 
act,  the  rule  is  entirely  settled  that  the  jury  is  entitled,  in  fixing  the 
damages,  to  consider  the  mental  agitation  as  well  as  the  physical 
injury." 

This  harmonizes  with  the  decision  in  Consolidated  Traction  Co. 
v.  Lambertson,  30  Vroom,  297,  and  Buchanan  v.  West  Jersey  Railroad 
Co.,  23  Id.  265. 

It  is  not  perceived  that  the  question  of  recovery  for  peril,  causing 
mere  fright  unaccompanied  by  physical  suffering,  is,  in  the  remotest 
sense,  presented  in  this  case.  The  injury  sustained  by  the  plaintiff, 
and  for  which  recovery  is  sought,  was  not  the  result  of  fright,  but  was 
due  to  the  falling  down  of  the  plaintiff  and  the  injury  to  her  knee. 
She  was  placed  in  peril  by  the  negligent  act  of  the  defendant,  and  in 
her  effort  to  escape  from  danger  she  fell  and  was  injured.  Does  it 
require  any  stretch  of  imagination  to  believe  that  everyone  in  the 
neighborhood  of  this  derailed  car  was  frightened,  and  it  would  be 
extraordinary,  indeed,  if  they  attempted  to  escape  and  were  injured 
that  they  should  be  without  remedy. 

I  think  the  point  decided  in  Buchanan  v.  West  Jersey  Railroad  Co. 
governs  this  case.  There  a  woman  was  lawfully  on  the  railroad  plat- 
form of  the  defendant.  A  piece  of  timber  projected  from  one  of  the 
cars  of  a  train  so  as  to  reach  the  platform,  and  in  order  to  avoid  being 
struck  she  was  obliged  to  throw  herself  upon  the  platform.  By  reaons 
of  the  shock  to  her  nervous  system  her  health  was  seriously  impaired. 

A  verdict  in  her  favor  was  sustained  by  the  Supreme  Court,  Chief 
Justice  Beasley  saving:  "The  suit  was  not  on  the  single  ground  that 
the  plaintiff  had  been  frightened.  There  was  a  basis  for  the  action  in 
"the  carelessness  of  the  company  which  compelled  the  plaintiff  to 
throw  herself  upon  the  platform,  as  such  carelessness  leading  to  that 
result  was,  per  se,  actionable.  The  fright  was  an  incident  to  such 
cause  of  action,  and  a  mere  aggravation  of  the  tort."  See,  also,  Vanden- 
burgh  V.  Truax,  4  Denio,  464. 

In  the  case  under  consideration  the  negligence  of  the  defendant,  in 
permitting  the  derailing  and  escape  of  the  car,  is  too  plain  for  argu- 
ment, and  it  was  such  negligence  as  caused  the  plaintiff,  in  terror,  to 
attempt  to  escape  the  peril  by  running,  and  in  so  doing  she  fell  and  was 
injured. 

The  true  rule  governing  cases  of  this  character  may  be  stated  as 


SECT.  IV.]  PAGE   V.   BUCKSPOKT.  245 

follows :  That  if  a  defendant,  by  negligence,  puts  the  plaintiff  under  a 
reasonable  apprehension  of  personal  physical  injury,  and  plaintiff, 
in  a  reasonable  effort  to  escape,  sustains  physical  injury,  a  right  of 
action  arises  to  recover  for  the  physical  injury  and  the  mental  disorder 
naturally  incident  to  its  occurrence. 

Tne  case  below  was  properly  submitted  to  the  jury,  and  the  judgment 
below  should  be  affirmed. 

For  affirmance  —  The  Chief  Justice,  Van  Syckel,  Dixon,  Garrison, 
Gummere,  Collins,  Fort,  Garretson,  Hendrickson,  Bogert,  Krueger, 
Adams,    Voorhees,    Vroom.    14. 

For  reversal. —  None.^ 


BENNETT  v.  LOCKWOOD. 
Supreme  Court  of  New  York,  1838. 

[Reported  20  Wend.  223.] 

Nelson,  C.  J.  The  defendant  took  the  horse  and  wagon  of  the 
plaintiffs  wrongfully  and  used  them,  by  reason  of  which  taking  the 
plaintiffs  were  induced  to  believe  that  the  person  to  whom  they  had 
hired  it  temporarily  had  absconded,  and  therefore  they  went  in  pur- 
suit of  their  property,  and  expended  time  and  money.  It  is  insisted 
for  the  plaintiff  in  error  that  the  common  pleas  erred  in  allowing 
the  plaintiffs  to  recover  for  the  time  spent  and  expenses  incurred,  on 
the  ground  that  the  damages  thus  claimed  were  not  the  natural  or 
necessary  consequence  of  the  wrongful  taking.  Admitting  the  counsel 
for  the  plaintiff  to  be  right  in  this  proposition,  it  is  no  objection  to  the 
recovery  if  the  damages  were  proximate  and  not  too  remote,  and  were 
claimed  in  the  declaration.  1  Chitty's  R.  333.  1  Saund.  PI.  and  Ev. 
136.  Here  the  damages  were  duly  claimed;  they  occurred  in  the  use 
of  reasonable  means  on  the  part  of  the  plaintiffs  to  re-possess  them- 
selves of  their  property,  and  were  occasioned  by  the  wrongful  act  of 
the  defendant. 

Judgment  affirmed 


PAGE  V.   BUCKSPORT. 
Supreme  Judicial  Court  of  Maine,  1874. 

[Reported  64  Me.  51.] 

Peters,  J.     The  plaintiff  was  driving  with  a  horse  and  gig  over 
a  defective  bridge  in  the  defendant  town  when  the  horse  broke  through 

1  See  Vallo  v.  United  States  Exp.  Co.,  147  Pa.  404,  23  Atl.  594.  —  Ed. 


246  PAGE    V.   BUCKSPORT.  [CHAP.  III. 

the  bridge  and  fell.  The  plaintiff  immediately  jumped  from  his  gig 
and  undertook  to  extricate  the  horse  from  the  hole  in  the  bridge.  In 
doing  so,  in  the  struggle  of  the  horse  to  free  himself,  he  was  struck 
by  the  horse's  head  and  personally  injured  thereby.  He  was  at  the 
time  of  the  Injury  in  the  use  of  common  care. 

The  question  is,  whether  the  defect  in  the  way  can  be  considered 
as  the  direct  and  proximate  cause  of  the  injury  complained  of.  The 
defendants  contend  that  it  was  not.  Their  counsel  attempt  to  fortify 
this  position  by  many  plausible  and  interesting  illustrations.  There 
may  be  a  good  deal  of  subtlety  and  refinement  of  argument  upon  ques- 
tions of  this  kind.  There  can  be  no  fixed  and  Immutable  rule  upon 
the  subject  that  can  be  applied  to  all  cases.  IVIuch  must  therefore, 
as  is  often  said,  depend  upon  the  circumstances  of  each  particular 
case. 

Upon  the  facts  of  this  case,  we  think  that  the  defect  in  the  way 
was  the  proximate  cause  of  the  injury,  and  that  the  defendants  are 
liable  for  the  damages  sustained.  The  foundation  of  this  liability, 
is  the  ser\ices  rendered  or  attempted  to  be  rendered  by  the  plaintiff 
for  the  benefit  of  the  town,  when  the  injury  was  received.  The  law 
required  such  services  of  the  plaintiff.  It  was  his  duty  to  save  the 
horse  If  possible.  He  would  have  been  guilty  of  negligence  towards 
the  town  if  he  had  failed  to  make  all  reasonable  attempts  to  do  so. 
It  is  a  general  rule  of  law,  that,  where  a  person  may  sustain  an  injury 
by  the  fault  of  another,  common  care  should  be  used  upon  his  part 
to  render  the  injury  for  which  the  party  in  fault  is  responsible  as 
light  as  possible.  He  may  be  compensated  for  an  injury  received  when 
in  the  exercise  of  such  care  and  prudence,  although  a  mistake  may  be 
made.  In  Lund  v.  Tyngsboro,  11  Cush.  563,  It  was  held  that  a  town 
was  liable  to  a  traveler  who,  In  the  exercise  of  common  care  and  pru- 
dence, leaps  from  his  carriage  because  of  its  near  approach  to  a  danger- 
ous defect  In  the  highway  and  thereby  sustains  an  injury,  although  he 
would  have  sustained  no  Injury  If  he  had  remained  In  the  carriage. 
The  same  principle  was  established  In  Ingalls  v.  Bills,  9  Mete.  1 ;  and 
the  same  doctrine  was  applied  to  the  facts  in  the  case  of  Stover  i\ 
Bluehlll,  51  Maine,  439.  The  defendants  however  seek  to  distinguish 
those  cases  from  tills.  They  admit  that  such  a  doctrine  would  be 
applicable  if  the  Injury  had  happened  here  to  the  horse  Instead  of  to 
the  driver.  But  we  do  not  perceive  that  there  would  be  an;^  difference 
upon  principle,  whether  the  Injury  was  to  the  plaintiff's  person  or  his 
property.  The  accident  to  the  horse  was  an  Injury  sustained  by  the 
owner  of  the  horse.  The  plaintiff  was  attempting  to  relieve  himself 
of  an  injury  to  his  horse,  and  thereby  of  an  injury  to  himself,  when  the 
horse  in  his  struggles  struck  him  with  his  head.  This  view  of  the 
facts  is  supported  by  the  case  of  Stickney  i\  Town  of  Maidstone,  30 
Vt.  738,  cited  upon  the  plaintiff's  brief,  which  Is  as  near  a  copy  of  the 
facts  in  this  case  as  two  cases  could  well  be  alike.     We  think  that 


SECT.  IV.]  ILLINOIS    CENTRAL   RAILROAD    CO.  V.  SILER.  247 

all  which  took  place  at  the  time  of  the  accident  was,  as  between  these 
parties,  but  a  single  happening  or  event.     It  was  but  one  accident. 

Exceptions  overruled. 
Appleton,  C.  J.,  Cutting,  Walton,  Barrows,  and  Danforth,  JJ., 
concurred.^ 


ILLINOIS  CENTRAL  RAILROAD  CO.   v.   SILER. 
Supreme  Court  of  Illinois,  1907. 

[Reported  229  ///.  390.] 

Dunn,  J.  delivered  the  opinion  of  the  court: 

Appellant  presents  two  propositions  only:  First,  the  declaration 
does  not  state  a  cause  of  action;  second,  there  is  no  proof  that  ap- 
pellant set  out  the  fire  or  that  the  deceased  used  due  care. 

The  declaration  consisted  of  five  counts,  the  second  and  fifth  of 
which  were  substantially  alike,  and  alleged  that  defendant  negli- 
gently suffered  large  quantities  of  combustible  material  to  accumu- 
late upon  its  right  of  way;  that  fire  from  one  of  defendant's  engines 
ignited  said  combustible  material  and  thence  spread  and  was  commu- 
nicated to  the  decedent's  premises,  and  while  decedent,  with  all  due  care 
and  caution  for  her  own  personal  safety,  was  endeavoring  to  suppress 
said  fire  and  protect  her  dwelling  house  on  said  premises,  whose  de- 
struction was  threatened,  her  clothing  was  ignited  by  said  fire,  in  conse- 
quence whereof  she  was  burned  and  died.  The  third  and  fourth  ^(^/-uAA^i  >U 
counts  allege  that  fire  escaped  from  one  of  defendant's  locomotives  / .  .  * 
by  defendant's  mere  neglect  and  set  fire  to  certain  combustible  material 
on  its  right  of  way  and  decedent's  adjoining  close,  and  wliile  decedent, 
with  all  due  care  for  her  personal  safety,  was  endeavoring  to  extinguish ,  pL 

the  fire  and  protect  her  dwelling  house,  which  was  threatened  with*i-'V-^»  ic^-t 
destruction,  her  clothing  was  ignited  and  she  was  burned,  and  inJj/T/ 
consequence  thereof  died.  ^lO 

It  is  claimed  that  the  second  and  fifth  counts  are  statutory  and 
therefore  bad,  because  the  statute  in  reference  to  the  accumulation  of 
dangerous  combustible  material  upon  the  right  of  way  of  a  railroad 
company  (3  Starr  &  Cur.  Stat.  par.  69,  p.  3263)  refers  back  to  the  pre- 
ceding section  for  its  penalty,  and  applies  only  to  stock  and  not  to  per- 
sons. But  these  counts  do  not  refer  to  the  statute  and  do  not  depend 
upon  it  for  their  validity.  Before  the  statute,  while  the  presence  of  dry 
grass  and  weeds  upon  the  right  of  way  of  a  railroad  company  was 
not  conclusive  evidence  of  negligence,  yet  the  question  of  negligence 
was  one  of  fact,  to  be  determined  by  the  jury  from  all  the  circum- 
stances in  the  case.     Illinois  Central  Railroad  Co.  v.  Mills,  42  111.  407. 

It  is  insisted  that  all  the  counts  are  bad,  because  they  show,  specifi- 

1  See  also  Willis  v.  Providence  Telegram  Pub.  Co.,  20  R.  I.  2S5,  38  Atl.  947;  Cooper 
V.  Richland  County,  76  S.  C.  202,  56  S.  E.  958.  — Ed. 


248  ILLINOIS    CENTRAL   RAILROAD   CO.  V.  SILER.        [CHAP.  III. 

cally,  that  the  injury  to  decedent  was  not  the  proximate  result  of  the 
negligence  charged. 

What  is  the  proximate  cause  of  an  injury  is  ordinarily  a  question  of 
fact,  to  be  determined  by  the  jury  from  a  consideration  of  all  the  at- 
tending circumstances.  (Fent  v.  Toledo,  Peoria  and  Warsaw  Railway 
Co.,  59  111.  349;  Pullman  Palace  Car  Co.  v.  Laack,  143  id.  242;  West 
Chicago  Street  Railroad  Co.  v.  Feldstein,  169  id.  139.)  It  can  only 
arise  as  a  question  of  law  or  pleading  when  the  facts  are  not  only 
undisputed,  but  are  also  such  that  there  can  be  no  difference,  in  the 
judgment  of  reasonable  men,  as  to  the  inferences  to  be  drawn  from 
them.  The  counts  all  allege,  substantially,  that  the  fire  was  com- 
municated to  the  decedent's  premises  by  the  negligence  of  appellant. 
They  all  allege,  substantially,  that  while  the  deceased,  with  all  due  care 
for  her  safety,  was  trying  to  extinguish  the  fire,  her  clothing  was  ig- 
nited and  her  burning  and  death  resulted.  The  question  presented,  so 
far  as  the  demurrer  is  concerned,  is  whether  one  who  has  negligently 
set  fire  to  another's  premises  can  be  held  liable  for  damages  caused  by 
burning  the  owner  while  engaged  in  trying,  with  reasonable  prudence 
and  care,  to  extinguish  such  fire. 
J)  L  d,,,i"  Even  though  one's  property  has  been  negligently  set  on  fire  by  an- 
(t<  'j.ij  Ri'-  Q^jjgj.^  i\yQ  owner  cannot  permit  it  to  be  consmned  without  an  effort 
■^f    V*  to  save  it  and  then  claim  reimbursement  from  the  setter  out  of  the 

fire.  He  must  use  every  reasonable  effort,  consistent  with  his  personal 
safety,  to  preserve  the  property.  (Toledo,  Peoria  and  Warsaw  Rail- 
way Co.  V.  Pindar,  53  111.  447;  Chicago  and  Alton  Railroad  Co.  v. 
Pennell,  94  id.  448.)  Where  a  person  sees  his  property  exposed  to 
imminent  danger  through  the  negligence  of  another,  he  is  justified 
in  using  every  effort  to  save  it  which  a  reasonably  prudent  person  would 
use  under  similar  circumstances,  even  though  the  effort  exposes  him 
to  some  danger  which  he  would  othermse  have  avoided.  Due  care 
depends  upon  the  circumstances  surrounding  the  action.  It  is  to  be 
determined  with  reference  to  the  situation  in  which  he  finds  himself  at 
the  time.  What  is  due  care  in  one  situation  might  be  gross  recklessness 
under  different  circumstances.  Everyone  is  bound  to  anticipate  the 
results  naturally  following  from  his  acts.  The  appellant  was  there- 
fore bound  to  anticipate,  when  the  fire  started,  that  the  decedent 
would  try  to  put  it  out.  This  she  was  doing,  and  the  allegation  is 
that  she  was  using  all  due  care  and  caution  for  her  own  personal 
safety.  If  in  so  doing  the  fire  which  appellant  had  negligently  set  out 
spread  to  and  ignited  her  clothing  without  any  want  on  her  part  of 
the  care  which  an  ordinarily  prudent  person  would  exercise  under  the 
circumstances,  the  appellant  should  be  held  to  have  anticipated  such 
result  as  probable  and  to  be  liable  therefor. 

In  order  to  make  a  negligent  act  the  proximate  cause  of  an  injury  it 
is  not  necessary  that  the  particular  injury,  and  the  particular  manner 
of  its  occurrence,  could  reasonably  have  been  foreseen.    (City  of  Dixon 


I 


SECT.  IV.]         ILLINOIS   CENTRAL  RAILROAD   CO.  V.  SILER.  249 

V.  Scott,  181  111.  116.)  If  the  consequences  follow  in  unbroken  sequence 
from  the  wrong  to  the  injury  without  an  intervening  efficient  cause,  it 
is  sufficient  if,  at  the  time  of  the  negligence,  the  wrongdoer  might,  by 
the  exercise  of  ordinary  care,  have  foreseen  that  some  injury  might 
result  from  his  negligence.  Chicago  and  Alton  Railroad  Co.  v.  Pennell, 
supra;  Pullman  Palace  Car  Co.  v.  Laack,  supra;  Chicago  Hair  and 
Bristle  Co.  v.  Nueller,  203  111.  558. 

The  rule  as  to  what  constitutes  proximate  cause  was  considered 
in  the  case  of  Atchison,  Topeka  and  Santa  Fe  Railroad  Co.  v.  Stan- 
ford, 12  Kan.  354,  and  it  was  said:  "  Any  number  of  causes  and  effects 
may  intervene  between  the  first  wrongful  cause  and  the  final  injurious 
consequence,  and,  if  they  are  such  as  might  with  reasonable  diligence 
have  been  foreseen,  the  last  result,  as  well  as  the  first  and  every  in- 
termediate result,  is  to  be  considered,  in  law,  as  the  proximate  result 
of  the  first  wrong  cause.  But  whenever  a  new  cause  intervenes  which 
is  not  a  consequence  of  the  first  wrongful  cause,  which  is  not  under  the 
control  of  the  wrongdoer,  which  could  not  have  been  foreseen  by  the 
exercise  of  reasonable  diligence  by  the  wrongdoer  and  except  for  which 
the  final  injurious  consecjuences  could  not  have  happened,  then  such 
injurious  consequences  must  be  deemed  too  remote  to  constitute  the 
basis  of  the  cause  of  action." 

In  Milwaukee  and  St.  Paul  Railway  Co.  v.  Kellogg,  94  U.  S.  469,  it 
is  said:  "The  question  always  is,  was  there  an  unbroken  connection 
between  the  wrongful  act  and  the  injury, —  a  continuous  operation? 
Did  the  facts  constitute  a  continuous  succession  of  events,  so  linked 
together  as  to  make  a  natural  whole,  or  was  there  some  new  and  in- 
dependent cause  intervening  between  the  wrong  and  the  injury?  .  .  . 
The  inquiry  must,  therefore,  always  be  whether  there  was  any  inter- 
mediate cause,  disconnected  from  the  primary  fault  and  self-operating, 
which  produced  the  injury." 

It  is  true  that  in  this  case  the  voluntary  act  of  the  decedent  inter- 
vened between  the  negligent  act  of  the  appellant  in  setting  out  the 
fire  and  the  injury  occasioned  by  the  burning  of  decedent.  But  this 
act  was  one  of  the  intervening  causes  which  the  appellant  with  rea- 
sonable diligence  might  have  foreseen.  It  was  a  consequence  of  the 
wrongful  act  of  appellant  which  it  ought  to  have  anticipated.  It  was 
not  a  new  and  independent  cause  intervening  between  the  ^\Tong  and 
the  injury  or  disconnected  from  the  primary  cause  and  self-operating, 
but  was  itself  the  natural  result  of  appellant's  original  negligence. 

The  case  of  Scale  v.  Railway  Co.,  65  Texas,  274,  has  been  cited  by 
appellant  and  fully  sustains  its  position.  That  case  holds,  that,  whether 
the  deceased  was  negligent  or  not  in  her  attempt  to  put  out  the  fire, 
it  was  this  attempt,  and  not  the  original  negligence  of  the  defendant  in 
starting  the  flame,  that  was  the  proximate  cause  of  her  death.  This 
case  was  followed  by  the  Missouri  Court  of  Appeals  in  Logan  v.  Wabash 
Railroad  Co.,  70  S.  W.  Rep.  734.     In  the  case  of  Chattanooga  Light 


250  ILLINOIS   CENTRAL   RAILROAD    CO.  V.  SILER.       [CHAP.  III. 

and  Power  Co.  r.  Hodges,  109  Tenn.  331,  the  injury  resulted  from  "an 
act  committed  by  the  injured  party  so  ob\'iously  fraught  with  peril 
as  should  be  sufficient  to  deter  one  of  reasonable  intelligence."  The 
court,  while  reversing  the  judgment  against  the  defendant,  said: 
"The  rule  has  been  extended  so  as  to  give  the  injured  party  redress 
where  his  effort  to  save  property  has  been  such  as  a  reasonably  pru- 
dent man  would  have  made  under  similar  circumstances." 

The  cases  which  sustain  the  position  of  the  appellant  we  think  are 
wrong  in  principle  and  opposed  to  the  weight  of  authority.  One  whose 
property  is  exposed  to  danger  by  another's  negligence  is  bound  to 
make  such  effort  as  an  ordinarily  prudent  person  would  to  save  it  or 
prevent  damages  to  it.  If  in  so  doing,  and  while  exercising  such  care 
for  his  safety  as  is  reasonable  and  prudent  under  the  circumstances^ 
he  is  injured  as  a  result  of  the  negligence  against  the  effect  of  which  he 
is  seeking  to  protect  his  property,  the  wTongdoer  whose  negligence 
is  the  occasion  of  the  injury  must  respond  for  the  damages.  It  is  not 
just  that  the  loss  should  fall  on  the  innocent  \'ictim.  We  regard 
this  as  the  result  of  the  authorities  which  we  have  been  able  to  examine, 
aside  from  the  two  above  mentioned  as  sustaining  the  position  of  ap- 
pellant. Berg  V.  Great  Northern  Railway  Co.,  70  Minn.  272;  Liming 
V.  Illinois  Central  Railroad  Co.,  81  Iowa,  246;  Glanz  v.  Chicago,  Mil- 
waukee and  St.  Paul  Railway  Co.,  119  id.  611;  Wasmer  v.  Delaware, 
Lackawanna  and  Western  Railroad  Co.,  80  N.  Y.  212;  Page  v.  Bucks- 
ort,  64  Me.  51. 

The  declaration  was  sufficient  to  support  the  judgment. 

There  was  evidence  tending  to  show  that  appellant  had  allowed  dry 
grass  and  weeds  to  acciunulate  upon  its  right  of  way;  that  the  fire 
started  in  such  grass  and  weeds  and  spread  to  the  deceased's  premises 
immediately  after  the  passage  of  a  gravel  train  of  appellant;  that 
the  deceased  commenced  to  rake  the  grass  and  leaves  on  her  lot  and 
near  her  house,  and  while  doing  so  her  clothes  caught  fire;  that  the 
fire  was  started  by  the  negligence  of  appellant,  and  that  the  deceased 
exercised  ordinary  care,  under  circumstances,  for  her  own  safety. 
In  tliis  condition  of  the  record  the  judgment  of  the  Appellate  Court 
Is  final  as  to  the  facts. 

Appellant  insists  that  if  the  deceased  was  not  guilty  of  contribu- 
tory negligence  she  was  injured  as  the  result  of  a  pure  accident. 
But  the  law  is  well  settled  in  this  State  that  a  defendant  is  liable  for 
an  injury  caused  to  one  using  due  care  for  his  personal  safety  by  the 
defendant's  negligence  concurring  with  an  accident  without  which  the 
injury  would  not  have  occurred.  City  of  Rock  Falls  v.  Wells,  169 
111.  224;  City  of  Joliet  v.  Schufeldt,  144  id.  403;  Village  of  Carterville 
V.  Cook,  129  id.  152;  Armour  v.  Golkowska,  202  id.  144. 

We  find  no  error  in  the  record,  and  the  judgment  will  be  affirmed. 

Judgynent  affirmed} 
1  See  also  Glanz  v.  Chicago  M.  &  S.  P.  Ry.,  119  la.  611,  93  N.  W.  575.  —  Ed. 


.:-  ^/v^(JJ\jL. 


SECT.  IV.]  EHRGOTT   V.    MAYOR   OF    NEW    YORK.  251 


EHRGOTT  V.   MAYOR  OF  NEW  YORK. 
Court  of  Appeals  of  New  York,  1884. 

{Reported  96  A^.   Y.  264.] 

Earl,  J.  This  action  was  commenced  to  recover  damages  sus- 
tained by  the  plaintiff  from  personal  injuries  received  by  him  in  con- 
sequence of  a  defect  in  a  street  in  the  City  of  New  York.^  .  .  .  The 
accident  occurred  in  the  night  time,  while  it  was  raining.  When  the 
plaintiff  drove  into  the  ditch  in  the  street  his  horses  jumped,  the  axle 
of  his  carriage  was  broken,  and  he  was  dragged  partly  over  the  dash- 
board. With  the  assistance  of  men  who  came  to  his  help,  his  horses 
were  taken  from  the  carriage,  and  he  procured  another  carriage  and 
harnessed  his  horses  to  that,  and  drove  several  miles  to  his  home  with 
his  wife,  sister,  and  son.  To  report  the  accident  to  the  police  station 
nearby,  to  change  carriages  and  drive  to  his  home,  took  several  hours, 
and  during  that  time  he  was  exposed  to  the  cold  and  rain,  and  his 
clothes  became  perfectly  saturated  with  water.  He  was  not  that 
night  aware  that  he  had  sustained  any  injury,  and  the  next  morning 
first  became  sensible  of  the  pain  in  his  back.  Upon  the  trial  the  plain- 
tiff gave  evidence  tending  to  show  that  the  diseases  from  which  he 
was  suffering  were  results  of  the  strain  and  shock,  caused  by  his  being 
dragged  over  the  dashboard ;  and  the  defendant  gave  evidence  tending 
to  show  that  the  diseases  were  the  result  of  the  subsequent  exposure 
to  the  cold  and  rain.  The  judge,  in  his  charge  to  the  jury,  left  it  to  them 
to  determine  whether  the  injuries  of  which  plaintiff  complained  were  the 
proximate,  direct  result  of  the  accident,  and  upon  plaintiff's  request  he 
charged  "that  whether  his  personal  injuries  resulted  from  the  strain 
experienced  by  him  in  being  pulled  over  the  dashboard,  or  from  the 
exposure  after  the  accident,  the  defendant  is  still  responsible  for  the 
injuries  from  which  the  plaintiff  is  now  suffering,  provided  that  the 
jury  shall  find  that  the  plaintiff  was  without  negligence,  and  con- 
ducted himself  with  ordinary  and  reasonable  care."  To  this  charge 
defendant's  counsel  excepted.  The  judge  also  charged,  at  the  request 
of  the  defendant,  that  "the  inquiry  is  whether  the  plaintiff's  conduct 
has  augmented  the  mischief;  if  so,  as  the  law  is  inadequate  to  appor- 
tion the  wrong,  there  can  be  no  recovery;"  that  "no  punitive  damages 
can  be  recovered  against  the  city  in  this  action;  if  the  plaintiff  is  entitled 
to  recover  at  all,  the  jury  can  only  award  compensation  for  such 
actual  pecuniary  loss,  and  pain,  and  suffering  as  were  occasioned  by  the 
accident;"  that  "the  plaintiff  was  bound  to  use  ordinary  prudence  to 
avoid  ill  effects  from  the  accident  as  well  before  as  after  the  accident, 
1  Part  of  the  opinion  is  omitted. —  Ed. 


252  EHRGOTT   V.   MAYOR   OF   NEW   YORK.  [CHAP.  III. 

and  if  the  exposure  to  the  rain  and  wet  after  the  breakdown  occasioned 
the  present  injuries  to  the  spine,  and  such  exposure  was  not  the  con- 
duct and  action  of  a  prudent  man,  especially  in  v-iew  of  his  ill-health, 
arising  from  his  throat,  then  the  defendant  would  not  be  responsible 
for  it;"  that  "the  defendant  is  only  liable  for  such  damages  as  are  the 
natural  and  necessary  result  of  the  accident  in  question;"  and  he 
refused  to  charge  as  a  part  of  this  request,  "  and  for  such  damages  as 
might  reasonably  be  supposed  to  have  been  in  the  contemplation  of 
plaintiff  and  defendant,  as  the  probable  result  of  the  accident,"  and  to 
this  refusal  defendant's  counsel  excepted.  He  also  charged  the  following 
request  of  the  defendant :  "  If  you  find  that  the  defendant  is  not  respon- 
sible for  the  plaintiff's  present  sufferings,  within  the  rules  which  I  have 
just  laid  down,  and  yet  find  that  the  accident  was  the  result  of  the 
defendant's  negligence,  the  plaintiff  would  be  entitled  to  recover  for 
such  pain  and  suffering  as  the  evidence  shows  to  be  the  natural  and 
necessary  result  of  the  accident;"  and  he  refused  to  charge  the  follow- 
ing requests  of  the  defendant:  "Or  if  you  believe  that  such  spinal 
suffering-,  from  which  the  plaintiff  suffers,  arose  from  the  plaintiff's 
standing  out  in  the  cold  and  rain  for  an  hour,  or  an  hour  and  a  half, 
after  the  breakdown,  during  which  time  the  plaintiff  says  he  got  wet 
to  the  skin,  or  arose  from  his  catching  cold  by  riding  home  in  his  wet 
clothes,  and  if  you  believe  that  it  was  not  occasioned  directly  by  the 
rut  in  the  road,  but  that  it  was  the  result  of  the  plaintiff's  own  volun- 
tary exposure,  then  I  charge  you  that  the  city  would  not  be  liable 
therefor; "  that  "  if  the  plaintiff's  personal  sufferings  were  occasioned  by 
his  getting  wet  to  the  skin,  from  standing  outdoors,  and  then  driving 
home  in  his  wet  clothes,  on  the  night  in  question,  then  I  charge  you 
that  the  defendant  would  not  be  liable  for  them."  To  these  refusals 
defendant's  counsel  excepted. 

The  defendant  also  requested  the  judge  to  charge  "that  the  spinal 
injuries  from  w^hich  the  plaintiff  now  suffers,  if  they  were  occasioned 
by  the  exposure  to  the  wet,  following  the  accident,  as  the  defendant 
contends  they  were,  are  not  the  natural  and  necessary  result  of  the 
accident,  and  are  not  such  as  might  reasonably  be  supposed  to  have  been 
in  the  contemplation  of  the  parties  as  the  probable  outgrowth  of  the 
accident,  and,  therefore,  in  the  contemplation  of  the  law,  the  defend- 
ant is  not  liable  therefor."  The  judge  declined  to  charge  this,  except 
as  he  had  already  charged,  and  the  defendant's  counsel  excepted. 

The  judge  submitted  written  questions  to  the  jury,  which  they 
answered  as  follows:  First.  "Are  the  spinal  difficulties,  from  which 
the  plaintiff  is  now  suffering,  the  direct  result  of  the  accident  —  that  is, 
the  breaking  of  the  axle,  and  his  falling  over  the  dashboard  —  or 
are  they  the  result  of  his  subsequent  exposure  to  the  wet  or  cold,  or 
both?"  Answer:  "Of  both."  Second.  "  Was  it  a  reasonably  prudent 
action  for  the  plaintiff  to  remain  in  the  street,  exposed  to  the  rain  and 
cold'  during  the  time  that  his  journey  was  interrupted  on  the  night 


SECT.  IV.]  EHRGOTT   V.   MAYOR   OF   NEW   YORK.  253 

of  the  accident?"  Answer:  "Yes."  Third.  "Was  it  a  reasonably 
prudent  action  for  him  to  resume  his  journey,  and  drive  home  in  his 
wet  clothing,  when,  as  he  says  he  was,  drenched  to  the  skin?"  Ans. 
"Yes."  Fourth.  "Did  the  plaintiff's  exposure  tend  to  increase  or 
consummate  whatever  injury  he  received  by  the  breaking  of  the  axle 
and  in  falling  over  the  dashboard?"    Ans.  "Yes." 

It  is  sometimes  said  that  a  party  charged  with  a  tort,  or  with  breach 
of  contract,  is  liable  for  such  damages  as  may  reasonably  be  supposed 
to  have  been  in  the  contemplation  of  both  parties  at  the  time,  or  \vith 
such  damage  as  may  reasonably  be  expected  to  result,  under  ordinary 
circumstances,  from  the  misconduct,  or  with  such  damages  as  ought  to 
have  been  foreseen  or  expected  in  the  light  of  the  attending  circum- 
stances, or  in  the  ordinary  course  of  things.  These  various  modes  of 
stating  the  rule  are  all  apt  to  be  misleading,  and  in  most  cases  are 
absolutely  worthless  as  guides  to  the  jury.  (Leonard  v.  N.  Y.,  etc., 
Tel.  Co.,  41  N.  Y.  544.)  Parties  when  they  make  contracts,  usually 
contemplate  their  performance  and  not  their  breach,  and  the  conse- 
quences of  a  breach  are  not  usually  in  their  minds,  and  it  is  useless 
to  adopt  a  fiction  in  any  case  that  they  were.  When  a  party  commits 
a  tort  resulting  in  a  personal  injury,  he  cannot  foresee  or  contemplate 
consequences  of  his  tortious  act.  He  may  knock  a  man  down,  and  his 
stroke  may,  months  after,  end  in  paralysis  or  in  death  —  results  which 
no  one  anticipated  or  could  have  foreseen.  A  city  may  leave  a  street 
out  of  repair,  and  no  one  can  anticipate  the  possible  accidents  which 
may  happen,  or  the  injuries  which  may  be  caused.  Here  nothing  short 
of  Omniscience  could  have  foreseen  for  a  minute  what  the  result  and 
effect  of  driving  into  this  ditch  would  be.  Even  for  weeks  and  months 
after  the  accident  the  most  expert  physicians  could  not  tell  the  ex- 
tent of  the  injuries. 

The  true  rule,  broadly  stated,  is  that  a  wrongdoer  is  liable  for  the 
damages  which  he  causes  by  his  misconduct.  But  this  rule  must  be 
practicable  and  reasonable,  and  hence  it  has  its  limitations.  A  rule 
to  be  of  practicable  value  in  the  administration  of  the  law,  must  be 
reasonably  certain.  It  is  impossible  to  trace  any  wrong  to  all  its  con- 
sequences. They  may  be  connected  together  and  involved  in  an 
infinite  concatenation  of  circumstances.  As  said  by  Lord  Bacon,  in 
one  of  his  maxims  (Bac.  Max.  Reg.  1):  "It  were  infinite  for  the 
law  to  judge  the  cause  of  causes,  and  their  impulsion  one  of  another; 
therefore  it  contenteth  itself  wnth  the  immediate  cause,  and  judgeth 
of  acts  by  that,  without  looking  to  any  further  degree."  The  best 
statement  of  the  rule  is  that  a  wTongdoer  is  responsible  for  the  natural 
and  proximate  consequences  of  his  misconduct ;  and  what  are  such  con- 
sequences must  generally  be  left  for  the  determination  of  the  jury. 
(Milwaukee  &  St.  P.  R.  Co.  v.  Kellogg,  94  U.  S.  469.)  We  are,  there- 
fore, of  opinion  that  the  judge  did  not  err  in  refusing  to  charge  the 
jury  that  the  defendant  was  liable  "only  for  such  damages  as  might 


254  EHRGOTT   V.   MAYOR   OF    NEW    YORK.  [cHAP.  III. 

reasonably  be  supposed  to  Have  been  in  the  contemplation  of  the 
plaintiff  and  defendant  as  the  probable  result  of  the  accident." 
"  The  judge  charged  the  jury  that  the  defendant  was  liable  to  the 
plaintiff,  even  if  the  disease  from  which  he  suffered  were  solely  due  to 
his  exposure  to  the  cold  and  rain  after  the  accident,  pro\'ided  he  was 
free  from  fault  and  negligence  in  the  exposure.  I  am  inclined  to  think 
that  there  was  no  error  in  this  portion  of  the  charge.  The  exposure 
was  the  direct  and  proximate  result  of  the  accident.  The  plaintiff  and 
his  family  were  unavoidably  forced  from  his  carriage  into  the  rain  and 
cold  by  the  accident,  and  were  thus  exposed  to  those  elements  in  con- 
sequence of  defendant's  wrong.  It  was  in  the  night  time,  and  they 
could  not  remain  in  the  carriage,  and  he  could  not  avoid  the  rain. 
He  was  bound  to  exercise  reasonable  prudence  in  taking  care  of  him- 
self and  avoiding  the  consequences  of  the  wrong  done.  He  had  the 
option  to  stand  in  the  street  where  the  accident  had  placed  him,  or  to 
go  home,  exercising  reasonable  prudence  and  the  best  judgment  he 
had.  There  is  thus  such  a  direct  connection  between  the  accident  and 
the  exposure  as  to  make  the  defendant  liable  for  the  latter.  It  must, 
however,  be  admitted  that  there  is  considerable  authority  in  opposition 
to  these  views.  (Hobbs  v.  L.  &  S.  W.  R.  Co.,  L.  R.  ^0  Q.  B.  Ill; 
McMahon  v.  Field,  44  L.  T.  [N.  S.]  Ch.  Div.  175;  Waller  v.  M.  G.  W. 
Railway  Co.,  12  Ir.  L.  T.  145;  Pullman  Palace  Car  Co.  v.  Barker,  4  Col. 
344;  Indianapolis,  etc.,  R.  Co.  v.  Birney,  71  111.  391;  Francis  v.  St.  L. 
Transfer  Co.,  5  Mo.  App.  7.)  But  the  views  expressed  are  not  con- 
demned by  any  authority  in  this  State,  and  are  fairly  sustained  by 
the  cases  of  Williams  v.  Vanderbilt  (28  N.  Y.  217)  and  Ward  v.  Vander- 
bilt  (4  Abb.  Ct.  of  App.  Dec.  521). 

But  even  if  the  portion  of  the  charge  just  referred  to  was  erroneous, 
it  was  entirely  harmless,  as  the  jury  found  that  the  diseases  from 
which  the  plaintiff  suffered  were  the  direct  result  both  of  the  accident 
(the  breaking  of  the  axle  and  his  falling  over  the  dashboard)  and  the 
subsequent  exposure,  and  that  the  effect  of  the  exposure  was  simply 
to  increase  and  aggravate  the  injury  received  from  the  accident. 
The  jury  found  that  the  plaintiff  was  blameless  for  the  subsequent 
exposure,  and,  therefore,  so  far  as  that  operated  in  causing  injury 
to  the  plaintiff,  it  was  a  cause  for  which  he  was  not  responsible.  There 
were,  according  to  the  finding  of  the  jury,  two  causes  operating  to 
produce  plaintiff's  injuries,  each  of  which  was  essential  to  produce 
the  results.  The  accident  without  the  exposure,  and  the  exposure 
without  the  accident,  would  not  have  caused  them.  This  case  then 
comes  within  the  principle  decided  in  Ring  v.  City  of  Cohoes  (77 
N.  Y.  83),  where  it  was  said:  "When  two  causes  combine  to  produce 
an  injury  to  a  traveler  upon  a  highway,  both  of  which  are  in  their  nature 
proximate  —  one  being  a  culpable  defect  in  the  highway,  and  the 
other  some  occurrence  for  which  neither  party  is  responsible  —  the 
municipality  is  liable,  provided  the  injury  would  not  have  been  sus- 


SECT.  IV.]  ECKERT   V.    LONCx    ISLAND    RAILROAD    CO.  255 

tained  but  for  such  defect;"  and  "when  several  proximate  causes  con- 
tribute to  an  accident,  and  each  is  an  efficient  cause,  without  the  oper- 
ation of  which  the  accident  would  not  have  happened,  it  may  be 
attributed  to  all  or  any  of  the  causes;  but  it  cannot  be  attributed  to 
a  cause  unless,  without  its  operation,  the  accident  would  not  have 
happened."  Here,  as  I  understand  the  findings  of  the  jury,  the  plain- 
tiff's injuries  would  not  have  been  suffered  but  for  the  strain  and  shock 
of  the  accident.  While  both  causes  were  proximate,  that  was  the  near- 
est and  most  direct.  Still  further.  It  was  certainly  impossible  for  the 
plaintiff  to  prove,  or  for  the  jury  to  find,  how  much  of  the  injury  was  due 
to  either  cause  alone.  It  was  wholly  impossible  to  apportion  the  dam- 
age between  the  two  causes.  Shall  this  difficulty  deprive  the  plaintiff 
of  all  remedy?  We  answer  no.  The  wTong  of  the  defendant  placed 
the  plaintiff  in  this  dilemma,  and  it  cannot  complain  if  it  is  held  for  the 
entire  damage. 

We  have  thus  examined  Avith  the  care  which  the  importance  of  this 
case  seems  to  demand  the  principal  questions  involved  upon  this 
appeal.  There  are  some  other  exceptions  noticed  in  the  brief  of  the 
learned  counsel  for  the  city,  but  they  are  not  of  sufficient  importance 
to  require  discussion  here.  They  do  not  seem  to  be  much  relied  on 
and  clearly  point  to  no  error. 

The  order  of  the  General  Term,  reversing  the  judgment  and  grant- 
ing a  new  trial,  should  be  reversed,  and  the  judgment  entered  upon 
the  verdict  should  be  affirmed,  with  costs  of  the  appeal  to  the  General 
Term  and  to  this  court. 

All   concur. 

Order  reversed  and  judgment  affirmed,^ 


/ 


ECKERT  V.   LONG  ISLAND  RAILROAD  CO. 
Court  of  Appeals  of  New  York,  187L 

[Reported  43  A'.    1'.  502.] 

Grover,  C.  J.  The  important  question  in  this  case  arises  upon  the 
exception  taken  by  the  defendant's  counsel  to  the  denial  of  his  motion 
for  a  non-suit,  made  upon  the  ground  that  the  negligence  of  the  plain- 
tiff's intestate  contributed  to  the  injury  that  caused  his  death.  The 
evidence  showed  that  the  train  was  approaching  in  plain  view  of  the 
deceased,  and  had  he  for  his  own  purposes  attempted  to  cross  the 
track,  or  with  a  view  to  save  property  placed  himself  voluntarily  in  a 
position  where  he  might  have  received  an  injury  from  a  collision  with 
the  train,  his  conduct  would  have  been  grossly  negligent,  and  no 
recovery  could  have  been  had  for  such  injury.    But  the  evidence  fur- 

1  See  also  Crowley  v.  West  End,  149  Ala.  349,  43  So.  359.  — Ed. 


\f 


256  HARROLD   V.   WATNEY.  [CHAP.  III. 

ther  showed  that  there  was  a  small  child  upon  the  track,  who,  if  not 
rescued,  must  have  been  inevitably  crushed  by  the  rapidly  approaching 
train.  This  the  deceased  saw,  and  he  owed  a  duty  of  imperfect  obli- 
gation to  this  child  to  rescue  it  from  its  extreme  peril,  if  he  could 
do  so  without  incurring  great  danger  to  himself.  Negligence  implies 
some  act  of  commission  or  omission  wrongful  in  itself.  Under  the  cir- 
cumstances in  which  the  deceased  was  placed,  it  was  not  wrongful 
in  him  to  make  every  eflFort  in  his  power  to  rescue  the  child,  compatible 
with  a  reasonable  regard  for  his  own  safety.  It  was  his  duty  to  ex- 
■"  ercise  his  judgment  as  to  whether  he  could  probably  save  the  child 
without  serious  injury  to  himself.  If,  from  the  appearances,  he  be- 
lieved that  he  could,  it  was  not  negligence  to  make,  an  attempt  so  to  do, 
although  believing  that  possibly  he  might  fail  and  receive  an  injury 
himself.  He  had  no  time  for  deliberation.  He  must  act  instantly,  if 
at  all,  as  a  moment's  delay  would  have  been  fatal  to  the  child.  The 
law  has  so  high  a  regard  for  human  life  that  it  will  not  impute  negli- 
gence to  an  effort  to  preserve  it,  unless  made  under  such  circumstances 
as  to  constitute  rashness  in  the  judgment  of  prudent  persons.  For  a 
person  engaged  in  his  ordinary  affairs,  or  in  the  mere  protection  of 
property,  knowingly  and  voluntarily  to  place  himself  in  a  position 
where  he  is  liable  to  receive  a  serious  injury,  is  negligence,  which  wall 
preclude  a  recovery  for  an  injury  so  received;  but  when  the  exposure 
is  for  the  purpose  of  saving  life,  it  is  not  wrongful,  and  therefore  not 
negligent  unless  such  as  to  be  regarded  either  rash  or  reckless.  The 
jury  were  warranted  in  finding  the  deceased  free  from  negligence  under 
the  rule  as  above  stated.  The  motion  for  a  non-suit  was,  therefore, 
properly  denied.  That  the  jury  were  warranted  in  finding  the  defend- 
ant guilty  of  negligence  in  running  the  train  in  the  manner  it  was  run- 
ning, requires  no  discussion.  None  of  the  exceptions  taken  to  the 
charge  as  given,  or  to  the  refusals  to  charge  as  requested,  affect  the 
right  of  recovery.  Upon  the  principle  above  stated,  the  judgment 
appealed  from  must  be  affirmed  with  costs. ^ 

Church,  C.  J.,  Peckham  and  Rapallo,  JJ.,  concur. 
Allen  and  Folger,  JJ.,  dissented. 


HARROLD  V.  WATNEY. 
High  Court  of  Justice,  Queen's  Bench  Division,  1898. 

[Reported  (1898)  2  Q.  B.  320.] 

A.  L.  Smith,  L.J.  This  is  an  application  by  the  infant  plaintiff  to 
have  judgment  entered  for  him  in  a  case  tried  before  Ridley,  J.,  and  a 
jury.    Speaking  for  myself,  it  does  not  seem  to  me  that  the  real  ques- 

1  See  also  Corbin  v.  Philadelphia,  195  Pa.  4f)l,  45  Atl.  1070.  — Ed. 


SECT.  IV.]  HARROLD  V.    WATNEY.  257 

tion  on  which  the  case  ought  to  have  been  fought  was  specifically  de- 
termined. 

The  facts  are  that  the  defendant  was  the  owner  of  a  fence  by  the 
side  of  a  highway,  and  the  e\'idence  is  overwhelming  that  the  fence 
was  rotten  and  defective.  A  boy  of  four  years  of  age  was  using  the 
highway,  and  on  the  other  side  of  the  fence  was  ground  on  which 
boys  were  accustomed  to  play.  This  attracted  him,  and  he  put  one 
foot  on  the  fence  and  was  about  to  put  the  other  on,  when  the  fence 
came  down  up>on  and  injured  him.  The  question  is  whether  this 
action  for  the  injuries  so  sustained  can  be  maintained.  The  learned 
judge  decided  that  it  could  not,  but  I  cannot  think  that  is  the  right 
view.  A  rotten  fence  close  to  a  highway  is  an  obxaous  nuisance.  If 
I  were  on  the  highway  and  wanted  to  tie  up  my  boot,  or  got  tired 
and  leaned  against  the  fence,  should  I  not  have  been  lawfully  using 
the  highway?  The  present  case  is  a  stronger  one.  This  boy  was  law- 
fully using  the  highway,  and  doing  that  which  is  pointed  out  by  Lord 
Denman  in  Lynch  v.  Nurdin^  to  be  a  natural  thing  for  him  to  do. 
That  case  has  never  been  overruled,  but  has  been  treated  in  subse- 
quent cases  as  sound  law.  The  facts  were  that  the  defendant  negli- 
gently left  his  horse  and  cart  unattended  in  the  street,  and  that  the 
plaintiff,  a  child  seven  years  old,  got  upon  the  cart  in  play,  and  another 
child  led  the  horse  on,  and  the  plaintiff  was  thrown  down  and 
hurt.  Lord  Denman,  in  delivering  the  judgment  of  the  court,  said 
"But  the  question  remains,  can  the  plaintiff  then,  consistently  \\'ith 
the  authorities,  maintain  his  action,  ha\'ing  been  at  least  equally 
in  fault.  The  answer  is  that,  supposing  that  fact  ascertained  by  the 
jury,  but  to  this  extent,  that  he  merely  indulged  the  natural  instinct 
of  a  child  in  amusing  himself  with  the  empty  cart  and  deserted  horse, 
then  we  think  that  the  defendant  cannot  be  permitted  to  avail  him- 
self of  that  fact.  The  most  blamable  carelessness  of  his  servant  hav- 
ing tempted  the  child,  he  ought  not  to  reproach  the  cliild  wnth  yielding 
to  that  temptation.  He  has  been  the  real  and  only  cause  of  the  mis- 
chief. He  has  been  deficient  in  ordinary  care;  the  child,  acting  with- 
out prudence  or  thought,  has,  however,  shown  these  qualities  in  as 
great  a  degree  as  he  could  be  expected  to  possess  them.  His  miscon- 
duct bears  no  proportion  to  that  of  the  defendant  which  produced  it. 
For  these  reasons,  we  think  that  nothing  appears  in  the  case  which 
can  prevent  the  action  from  being  maintained." 

That  decision  carries  the  present  case,  and  there  is,  further,  the 
case  of  Jewson  v.  Gatti  ^  which  supports  it.  In  that  case  where  was 
a  cellar  beside  the  highway  in  which  scene-painting  was  going  on.  A 
bar  was  round  the  opening;  a  passing  child  naturally  looked  down 
to  see  what  was  going  on;  the  bar  gave  way,  and  he  fell  into  the  cel- 
lar. Day,  J.,  non-suited  the  plaintiff,  but  the  non-suit  was  set  aside. 
Lord  EsHER,  in  giving  judgment,  said:  "This  was  a  case  of  premises 
1  1  Q.  B.  29.  2  2  Times  L.  R.  381,  441. 


258  HARROLD   V.    ^yATNEY.  [CHAP.  III. 

on  the  highway  in  a  street  where  hundreds  of  persons  and  many 
children  were  passing  up  and  down,  and  the  area  was  left  unprotected, 
without  any  due  regard  to  the  safety  of  the  public,  and  that  of  itself 
might  be  sufficient  to  sustain  a  case  for  the  plaintiff.  But  there  was 
more  than  that.  For  there  was  painting  going  on  in  the  cellar,  and  it 
must  have  been  known  that  this  would  attract  children;  and  then  a 
bar  was  put  up,  ostensibly  for  the  purpose  of  protection,  against 
which  children  would  naturally  lean  while  looking  down  into  the 
cellar  where  the  painting  was  going  on.  This  was  almost  an  invitation, 
certainly  an  inducement,  to  the  cliildren  to  lean  against  the  bar  while 
looking  down  into  the  cellar.  The  child  leant  against  it  and  it  gave 
way,  and  she  fell  down  into  the  area."  He  then  said  that  this  was  a 
case  for  the  consideration  of  the  jury,  and  Lindley,  L.J.,  concurred 
in  the  judgment. 

I  think  it  is  the  duty  of  this  court,  seeing  what  are  the  real  facts  of 
the  case  and  the  finding  of  the  jury  that  the  fence  was  very  defective, 
not  to  send  the  case  down  for  a  new  trial,  but  to  enter  the  verdict  for  the 
plaintiffs  for  the  damages  assessed  by  the  jury.  The  appeal  must  be 
allowed  with  costs. 

RiGBY,  L.J.  I  am  of  the  same  opinion.  The  most  telling  argu- 
ment for  the  defendant  was  that  the  accident  was  the  child's 
own  fault,  and  that  was  the  ground  on  which  the  judgment  was 
entered  for  the  defendant.  But  in  neither  of  the  cases  of  Lynch 
V.  Nurdin  nor  Jewson  v.  Gatti  was  a  similar  argument  per- 
mitted to  prevail.  I  agree  that  judgment  ought  to  be  entered  for 
the  plaintiffs. 

Vaughan  Williams,  L.J.  I  agree.  As  the  case  raises  a  question 
of  principle  which  may  recur,  I  think  it  right  to  express  my  view  on  the 
matter.  This  is  an  action  in  which  it  is  alleged  that  the  injury  to  the 
child  arose  in  consequence  of  the  condition  in  which  the  defendant  left 
his  fence  adjoining  the  highway.  The  jury  were  not  asked  specifically 
the  question  whether  the  fence  was  in  such  a  dangerous  condition  as 
to  be  a  nuisance  to  those  who  used  the  highway.  But  on  reading  the 
evndence  the  only  conclusion  to  be  arrived  at  is  that  the  fence,  in  the 
condition  in  which  it  was,  constituted  a  danger  to  those  using  the 
highway  —  that  is,  it  constituted  a  nuisance.  When  that  has  been 
settled,  all  has  not  been  done  to  give  a  right  of  action  to  the  plain- 
tiff. It  must  also  be  proved  that  it  was  this  nuisance  which  was  the 
cause  of  the  injury  complained  of.  ^^^len  it  is  urged  that  the  child 
should  not  have  put  his  foot  on  the  fence,  that  amounts  to  a  suggestion 
that  the  accident  was  not  caused  by  the  nuisance,  but  by  the  conduct 
of  the  child;  and  for  this  purpose  it  does  not  matter  whether  that 
conduct  was  negligence  or  trespass.  In  my  vnew,  looking  at  the  facts 
of  this  case,  it  is  not  true  to  say  that  the  accident  was  caused  by  the 
conduct  of  the  child.  The  defendant  caused  a  nuisance,  and  when 
asking  one's  self  if  the  nuisance  was  the  cause  of  the  accident  one  gets 


SECT.  IV.]    HENRY  V.  ST.  LOUIS,  KANSAS  CITY  &  NORTHERN  RY.  CO.    259" 

a  test  in  this  way:  Ought  what  the  child  did  to  have  been  present 
to  the  mind  of  the  person  who  created  the  nuisance  as  a  probable  re- 
sult of  this  act?  If  he  says  that  it  was  not  the  consequence  of  his  act 
because  the  fence  was  good  enough  if  grown-up  people  who  were 
passing  did  not  touch  it,  and  that  they  had  no  right  to  touch  it,  the 
answer  is  that  the  highway  is  for  children  also,  and  if  he  leaves  such  a 
nuisance  close  to  a  highway  it  is  exceedingly  likely  to  cause  injury  to 
children  using  the  highway.  If  that  is  so,  it  is  the  nuisance  which  was 
the  cause  of  the  injury  to  the  child,  and  the  defendant  cannot  get 
out  of  that  conclusion  by  relying  on  the  act  of  the  child  in  touching 
the  fence  because  that  act  was  one  which  would  probably  not  be  done 
by  a  grown-up  person.  I  come,  therefore,  to  the  conclusion  that  it 
has  been  established  by  the  evidence  that  not  only  was  the  fence  a 
nuisance,  but  that  the  injury  to  the  child  was  the  result  of  that  nui- 
sance.^ 

Appeal  allowed. 

^^d-'^^y^y  HENRY   V.    ST.    LOUIS,    KANSAS    CITY    &   NORTHERN 
tlxrO^  n^^'f  RAILWAY    CO. 

t^^cty^Mij^  UJV  Supreme  Court  of  Missouri, 


1882. 
[Reported  76  Mo.  288.]     • 


^''^*^*^  Hough,  J.     This  is  an  action  to  recover  damages  on  account  of 


^^       -.-   .       ...       .-    -         .     . 

certain  personal  injuries  received  by  the  plaintiif  and  resulting  from 
^^'''*'  his  being  knocked  down  and  run  over  by  a  flat  car  of  the  defendant 

^'L  *  while  standing  behind  said  car  and  between  the  rails  of  one  of  defend- 
ant's tracks  in  its  suatchyard,  in  the  town  of  Moberly,  on  the  night  of 
September  7th,  1876. 

On  the  day  of  said  7th  of  September,  the  firm  of  Platter,  Crow  &  Co., 
of  which  plaintiff  was  a  member,  shipped  a  car  load  of  horses  from 
Chillicothe  to  St.  Louis,  over  the  railway  of  the  defendant,  under  a 
contract  which  entitled  the  plaintiff  to  transportation  on  the  train 
hauling  his  stock.  He  got  on  the  caboose  car  of  the  freight  train  on 
which  his  stock  was,  at  Brunswick,  and  reached  Moberly  in  safety 
about  11  o'clock  p.  m.  of  the  same  day.  When  the  train  reached 
the  roundhouse  west  of  the  passenger  depot  at  Moberly,  the  caboose 
was  detached  and  the  train  was  run  down  into  the  lower  end  of  the 
company's  yard,  east  of  the  passenger  depot,  where  a  train  was  to  be 
made  up  to  go  on  to  St.  Louis,  having  in  it  the  car  containing  plaintiff's 

1  See  also  True  &  True  Co.  v.  Woda,  201  111.  31.5,  66  N.  E.  .369;  Edgington  v.  Burling- 
ton C.  R.  &  N.  Ry.,  116  la.  410.  90  N.  W.  95;  Fishburn  v.  Burlington  &  N.  W.  Ry., 
127  la.  483,  103  N.  W.  481;  Briscoe  v.  Henderson  L.  &  P.  Co.,  148  N.  C.  396,62 
S.  E.  600;  Little  c,  James  McCord  Co.  (Tex.  Civ.  App.),  151  S.  W.  835.  — Ed. 


2 GO    HENRY  V.  ST.  LOUIS,  KANSAS  CITY  k  NORTHERN  RY.  CO.    [CHAP.  III. 

stock.  When  the  caboose  was  detached,  the  brakeman  said  to  to 
plaintiff,  "You  get  out  and  go  down  to  the  other  caboose;  this  caboose 
goes  no  further."  Plaintiff  was  also  informed  that  his  train  would 
start  from  the  lower  or  eastern  end  of  the  yard,  in  the  course  of  an 
hour  or  two.  Thereupon  plaintiff  and  one  Wagner,  who  was  also 
going  to  St.  Louis  on  the  same  train  with  plaintiff,  got  out,  and  walked 
to  the  depot,  and  after  remaining  there  about  an  hour,  went  eastward 
to  the  lower  end  of  the  yard  to  find  their  train.  The  night  was  quite 
dark,  neither  moon  nor  stars  were  shining,  but  it  was  light  enough 
to  enable  plaintiff  to  distinguish  his  gray  horses  in  the  car,  when  close 
to  them.  When  he  found  the  train  containing  his  stock,  which  ap- 
peared to  be  made  up  and  ready  to  go,  he  and  Wagner  walked  im- 
mediately back  to  the  east  or  forward  end  of  the  caboose,  which  was  at 
the  rear  or  west  end  of  the  train,  and  got  upon  the  platform  of  that 
car.  W^agner  tried  the  door  of  the  caboose,  but  failed  to  open  it,  and 
after  remaining  on  the  platform  a  few  moments,  the  plaintiff  becoming 
uneasy,  tried  the  door  and  opened  it  and  walked  in.  The  car  was 
dimly  lighted  by  a  lantern,  and,  as  plaintiff  was  about  to  seat  himself, 
some  person  who  was  reclining  on  the  opposite  side  of  the  caboose  asked 
him  what  he  was  doing  in  there.  The  plaintiff  stated  that  he  had  stock 
upon  the  train,  whereupon  the  other  gruffly  said:  "Get  out  of  here; 
the  train  is  not  ready."  Plaintiff  thereupon  went  out  on  the  platform  of 
the  car,  where  Wagner  was,  and  the  two  remained  there  several  minutes 
conversing  and  studying  what  to  do.  The  yard  contained  five  parallel 
tracks.  The  car  on  which  they  stood  was  on  the  center  track,  and 
there  were  two  tracks  on  either  side,  with  spaces  between  about  six 
feet  wide.  Plaintiff  had  never  been  in  the  yard  before,  but  he  knew  it 
was  the  switchyard  of  defendant.  Wagner  stepped  down  from  the 
platform  of  the  caboose  and  turned  to  go  west  toward  the  depot; 
the  plaintiff  also  left  the  platform,  but,  wishing  to  remain  near  the 
caboose  so  he  could  conveniently  jump  on  when  they  commenced  pull- 
ing up  the  train,  he  walked  south  across  the  first  track,  which  was 
unobstructed  as  far  as  he  could  see,  both  east  and  west,  and  went  to 
the  second  track,  and  stepped  between  the  rails  of  the  second  track 
immediately  behind  the  east  end  of  a  flat  car  which  was  standing  on 
said  track,  intending  to  get  upon  the  flat  car  and  remain  there  until 
his  train  was  ready  to  start.  There  were  other  cars  west  of  the  flat 
car,  but  none  east  of  it.  As  plaintiff  stepped  upon  the  track  he  put  his 
hand  upon  the  flat  car,  and  finding  that  they  had  been  hauling  dirt 
upon  it  concluded  that  he  would  not  soil  liis  clothes  by  getting  upon  it, 
and  he  then  turned  around  and  was  standing  wath  his  back  toward 
the  car,  and  was  about  to  move  away,  when  the  flat  car  was  struck  by 
cars  pushed  against  it  from  the  west,  and  it  ran  over  him,  crushing 
his  leg.  Plaintiff  heard  no  engine  or  train  in  motion  to  the  rear  of  him, 
before  he  heard  the  noise  made  by  the  concussion  of  the  cars,  when  he 
was  struck,  and  he  saw  no  light  in  the  direction  from  which  the  cars 


SECT.  IV.]    HENRY  V.  ST.  LOUIS,  KANSAS  CITY  &  NORTHERN  RY.  CO.    261 

came,  and  no  light  in  the  yard,  save  one  to  the  east,  and  near  the  fon\^ard 
end  of  the  train  on  which  his  stock  was.  Plaintiff  testified  that  he  saw 
no  yardman  or  brakeman  in  the  yard,  at  or  before  the  time  of  his  in- 
jury ;  that,  if  there  were  any  near  enough  to  see  him,  he  did  not  see  them, 
and  that  if  there  had  been  a  brakeman  on  the  rear  of  the  train  pushed 
in  on  the  track  on  which  he  was  injured,  such  brakeman  could  not 
have  seen  him  at  the  distance  of  two  or  three  car  lengths.  The  fore- 
going are  all  the  material  facts  that  appear  in  the  testimony  for  the 
plaintiff,  and  no  additional  facts  material  to  the  plaintiff's  case  appear 
in  the  testimony  offered  by  the  defendant. 

That  portion  of  the  petition,  which  sets  forth  the  facts  constituting 
the  negligence  of  the  defendant,  relied  upon  as  giving  a  right  of  re- 
covery, is  as  follows: 

"Plaintiff  avers  that  he  was  rightly  in  said  caboose  car,  and  that 
he  had  the  right  to  be  and  remain  there,  and  to  be  conveyed  therein 
to  the  city  of  St.  Louis.  But  plaintiff  avers  the  further  fact  to  be, 
that  defendant,  by  its  agents  and  employees  in  charge  of  said  train  and 
caboose,  so  made  up  anew,  wTongfuUy,  and  by  force  and  violence, 
and  wathout  any  cause  or  provocation  whatsoever,  drove  out  and 
expelled  him  (plaintiff)  from  out  of  said  caboose  into  the  midst  of  said 
exceeding  great  number  of  side  car  tracks  and  cars  then  and  there 
being  standing,  into  a  place  of  great  danger;  and  plaintiff  avers  that 
at  once  and  immediately,  and  before  he  had  time  or  could  extricate 
himself  from  the  networks  of  said  car  tracks  and  cars  surrounding  him, 
the  defendant,  by  its  agents  and  employees,  so  negligently  run,  man- 
aged and  backed  up  another  car,  or  another  train  of  cars,  standing  on 
another  car  track,  or  switch  of  same  main  car  track,  to  which  plaintiff 
had  fled  when  expelled,  as  aforesaid,  from  the  caboose  aforesaid,  .and 
that  the  defendant  had  no  light  on  the  portion  of  car  track,  or  switch 
of  car  track  aforesaid,  and  gave  no  notice,  by  ringing  of  bells  or  other- 
wise, to  him  of  moving,  running,  managing  or  backing  up  of  any  train, 
or  car  of  any  train,  on  said  car  tracks,  or  any  switch  of  said  car  track, 
and  that  he  (plaintiff)  was,  without  fault  or  negligence  on  his  part, 
and  without  warning,  struck  in  the  back  and  knockefl  down  and  run 
over  by  said  train  so  moved,  run,  managed,  and  backed  up  as  afore- 
said, whereby  plaintiff  was  then  and  there  greatly  injured,  damaged, 
etc." 

When  there  is  no  conflict  in  the  testimony,  and  all  the  causes  con- 
tributing to  produce  an  injury  are  known  and  unquestioned,  whether 
a  given  act  in  the  chain  of  causation  is  the  remote  or  proximate  cause 
of  such  injury,  is  a  question  of  law  for  the  court. 

We  think  it  quite  plain  that  the  command  of  the  occupant  of  the 
caboose  to  the  plaintiff  to  "get  out  of  there"  was  not  the  proximate 
cause  of  his  injury.  Conceding  that  the  plaintiff's  expulsion  from  the 
interior  of  the  caboose  was  an  unlawful  act  on  the  part  of  the  defendant, 
although  the  person  who  ordered  him  out  was  not  shown  to  be  an 


262    HENRY  V.  ST.  LOUIS,  KANSAS  CITY  &  NORTHERN  RY.  CO.   [CHAP.  III. 

employee  of  defendant  and  the  rules  of  the  company  were  not  offered 
in  evidence,  still,  the  plaintiff  was  not  driven  from  the  platform  of  the 
caboose,  where,  from  aught  that  appears,  he  might  have  remained 
in  undisturbed  security,  until  the  train  was  ready  to  start;  nor  was  he 
driven,  directed,  or  invited,  by  any  servant  of  the  defendant,  into  a 
place  of  danger  from  which  he  was  unable  to  rescue  himself  before  he 
was  run  over  and  injured.  It  is  perfectly  manifest  from  the  testi- 
mony, that  the  plaintiff  voluntarily  and  deliberately,  in  the  free  exer- 
cise of  his  own  judgment  and  discretion,  and  for  his  own  convenience, 
took  his  station  behind  the  car  by  which  he  was  injured;  and  there 
is  not  even  a  scintilla  of  testimony  to  the  contrary.  This  voluntary 
action  of  the  plaintiff,  and  his  consequent  injury,  cannot  in  any  legal 
sense  be  said  to  have  been  occasioned  by  his  expulsion  from  the  x?a- 
boose.  They  succeeded  such  expulsion,  but  they  were  not  the  natural, 
ordinary,  or  probable  consequences  thereof,  and,  therefore,  not  the  proxi- 
mate result  of  such  expulsion.  Wharton  on  Negligence,  200,  §§  134, 
138;  Haley  v.  R.  R.  Co.,  21  Iowa,  15.  "The  spontaneous  action  of  an 
independent  wall,"  intervened  between  the  expulsion  from  the  car 
and  the  injury.  The  plaintiff  acted  neither  in  precipitation,  nor  under 
excitement  caused  by  the  defendant,  but  freely  and  deliberately,  and 
under  no  compulsive  necessity  to  go  where  he  did.  If  any  injury  had 
happened  to  him  while  in  the  act  of  prudently  obeying  the  order  to 
get  out  of  the  caboose,  such  injury  would  have  been  the  proximate 
result  of  his  expulsion;  but  after  he  was  out  of  the  caboose,  he  was 
entirely  free  to  select  his  own  position,  and  did  so  after  some  minutes 
of  meditation  and  consultation  as  to  what  course  he  should  pursue. 
It  is  perhaps  probable  that  if  the  plaintiff  had  not  been  ordered  out 
of  the  caboose,  he  would  not  have  been  injured,  but  this  hypothesis 
does  not  establish  the  legal  relation  of  cause  and  effect  between  the 
expulsion  and  the  injury.  If  the  plaintiff  had  not  left  home  he  certainly 
would  not  have  been  injured  as  he  was,  but  his  leaving  home  could  not, 
therefore,  be  declared  to  be  the  cause  of  his  injury.  As  the  plaintiff's  in- 
jiu"y  was  neither  the  ordinary,  natural,  nor  probable  consequence  of  his 
expulsion  from  the  caboose,  such^expulsion,  however  it  might  excite  our 
indignation,  in  the  absence  of  any  regulation  of  the  defendant  to 
justify  it,  cannot  be  considered  in  this  action,  and  the  legal  aspect 
of  the  case  is  precisely  the  same  that  it  would  have  been  if  no  such 
expulsion  had  taken  place.  It  is  to  be  regarded  as  if  the  plaintiff 
had  gone  to  the  caboose  atid  could  not  get  in  because  it  was  locked,  or, 
being  able  to  get  in,  chose  to  remain  outside.  If  the  plaintiff  at  the 
time  he  was  injured  had  been  on  his  way  to  the  caboose  or  otherwise 
lawfully  crossing  the  track,  and  before  crossing  the  same  had  looked 
and  listened  and  could  neither  see  nor  hear  an  approaching  train,  he 
would  undoubtedly  have  a  right  of  action.  But  he  had  reached  the 
caboose  in  safety,  and  being  forbidden  to  remain  inside,  and  not  choos- 
ing to  occupy  the  platform,  or  to  stand  in  the  open  spaces  between  the 


SECT.  IV.]    SNOW  V.  NEW  YORK,  NEW  HAVEN  &  HARTFORD  E.  R.  CO.    263 

tracks,  voluntarily  and  without  any  necessity  therefor,  put  himself 
in  a  place  of  danger  between  the  rails  on  one  of  the  switch-tracks,  with 
I  knowledge  of  the  fact  that  he  was  in  defendant's  yard,  where  its  cars 
were  shifted  and  its  freight  trains  were  made  up.  If  the  plaintiff  had 
taken  a  seat  on  the  flat  car  and  by  the  concussion  which  took  place  had 
been  thrown  down  and  run  over,  it  certainly  could  not  be  claimed  that 
he  would  be  entitled  to  recover.  He  had  no  right  as  a  passenger  or 
otherwise  to  get  on  that  car  because  he  had  been  ordered  out  of  the 
caboose  in  which  he  had  a  right  to  be.  If  there  could  be  no  recovery  in 
the  case  put,  we  do  not  see  how  the  plaintiff  can  have  any  greater 
right  to  recover,  because  he  was  injured  in  the  attempt  to  get  on  said 
car. 

As  the  plaintiff  was  on  the  defendant's  track  under  such  circumstances 
as  did  not  create  any  duty  on  its  part  toward  him,  beyond  that  of  not 
wilfully  injuring  him,  it  is  unnecessary  to  consider  whether  the  ser- 
vants of  the  defendant  were  guilty  of  any  negligence  in  not  having 
lights  and  a  brakeman  on  the  train  backed  in  from  the  west  or  in 
not  sounding  a  whistle  or  ringing  a  bell.  Hallihan  v.  R.  R.  Co.,  71  Mo. 
113;  Van  Shaick  v.  R.R.  Co.,  43  N.  Y.  527. 

The  negligence  of  the  plaintiff  disclosed  by  his  own  testimony  must 
debar  him  from  recovery.  We  are  of  opinion  that  the  circuit  court 
erred  in  not  sustaining  the  demurrer  to  the  evidence,  and  its  judgment 
will,  therefore,  be  reversed.  The  other  judges  concur,  except  Norton, 
J.,  who  dissents.^ 


SNOW  V.  NEW  YORK,  NEW  HAVEN  &  HARTFORD  R.  R.  CO. 
Supreme  Judicial  Court  of  Massachusetts,  1904. 

[Reported  185  Mass.  321.] 

Morton,  J.  These  are  two  actions  of  tort  which  were  tried  together. 
The  first  is  for  injuries  received  by  the  female  plaintiff  in  a  collision 
on  the  defendant's  railroad  on  December  16,  1899,  while  a  passenger, 
and  the  second  is  by  the  husband  for  expenses  and  loss  of  consortium. 
The  liability  was  admitted  and  the  only  question  in  each  case  was  the 
amount  of  the  damages.  The  verdicts  were  unsatisfactory  to  the 
plaintiffs,  and  the  cases  are  here  on  their  exceptions  to  certain  rulings 
and  instructions  and  to  the  admission  of  certain  testimony. 

There  was  testimony  tending  to  show  that  as  the  result  of  the  in- 
juries received  the  female  plaintiff  became  subject  to  attacks  of  dizzi- 
ness which  continued  at  intervals  from  the  time  of  her  injury  down  to 
the  time  of  the  trial,  which  occurred  in  May,  1903,  and  there  was  testi- 

1  See  Lew-is  v.  Flint  &  P.  M.  R.  R.,  54  Mich.  55.  — Ed. 


264   SNOW  V.  NEW  YORK,  NEW  HAVEN  &  HARTFORD  R.  R.  CO.    [CHAP.  III. 

mony  tending  to  show  that  on  one  occasion,  when  alone  in  her  home 
several  months  before  the  trial,  she  got  into  a  pantry  sink  by  means  of 
a  chair  to  see  about  a  leak  in  the  water  pipe  above  the  sink,  and  while 
standing  in  the  sink  had  an  attack  of  dizziness,  and  fell  to  the  floor 
and  broke  her  wrist.  She  offered  to  show  the  pain  and  other  incon- 
veniences which  she  suffered  from  the  broken  wrist,  but  the  judge  ex- 
cluded the  evidence,  and  instructed  the  jury  not  to  consider  the  conse- 
quences of  the  broken  wrist,  as  they  were  too  remote,  and  the  defendant 
was  not  responsible.  The  plaintiff  excepted  to  these  rulings  and  in- 
structions, and  this  constitutes  the  first  exception. 

The  case  of  Raymond  v.  Haverhill,  168  Mass.  382,  would  be  decisive 
on  this  point  except  for  the  fact  that  it  was  a  highway  case.  It  was 
held  in  that  case  that  the  plaintiff  whose  right  ankle  had  been  in- 
jured by  a  defect  in  a  sidewalk  in  the  defendant  city  so  that  it  became 
weak  and  was  liable  at  times  to  turn  and  fail  to  support  her  could 
not  recover  for  injuries  received  by  her  in  consequence  of  a  fall  due 
to  the  failure  of  the  ankle  to  support  her  as  she  was  stepping  from  a 
chair  to  a  settee  while  assisting  in  preparing  for  an  entertainment 
in  a  public  hall.  It  was  held  that  the  injuries  so  received  were  not  the 
direct  and  immediate  results  of  the  injury  received  in  consequence  of 
the  defect  in  the  public  way,  but  were  due  to  a  new  and  independent 
cause.  It  is  true  that  cities  and  towns  are  not  liable  for  consequential 
injuries  resulting  from  defects  in  the  public  ways.  Nestor  v.  Fall 
River,  183  Mass.  265.  But  there  was  a  strong  intimation  in  Raymond 
V.  Haverhill,  uhi  supra,  that,  if  the  action  had  been  for  negligence  at 
common  law,  the  later  injuries  could  not  have  been  considered  as  the 
natural  and  proximate  result  of  the  injury  received  in  consequence  of 
the  defect  in  the  sidewalk.  And  if  in  that  case  what  took  place  was 
regarded  as  constituting  a  new  and  intervening  cause,  as  it  was,  we 
do  not  see  how  what  took  place  in  the  present  case  can  be  otherwase 
regarded.  The  breaking  of  the  '^vTist  certainly  was  not  the  direct  result 
of  the  collision.  That  caused  or  may  have  caused  conditions  wliich 
contributed  to  it,  and  but  for  whose  existence  it  perhaps  would  not 
have  happened.  The  breaking  of  the  wrist  was  due  not  to  the  col- 
lision, but  to  her  conduct  in  getting  up  into  the  pantry  sink  to  look  at 
the  leak  in  the  water  pipe,  and  was  the  result  of  voluntary  and  inde- 
pendent action  on  her  part.  The  plaintiff  relies,  amongst  other  cases, 
on  Brown  v.  Chicago,  Milwaukee  &  St.  Paul  Railway,  54  Wis.  342. 
But  this  court  expressly  declined  to  follow  that  case  in  Raymond  v. 
Haverhill,  uhi  supra.  We  think  that  this  exception  also  must  be  over- 
ruled. 

The  remaining  exception  relates  to  the  admission  of  two  commu- 
nications sent  by  the  plaintiff  to  the  defendant.  The  plaintiff  objected 
to  their  admission  on  the  ground  that  they  related  to  a  compromise  of 
the  plaintiff's  claim.  The  letters  cannot  be  regarded  as  offers  of  com- 
promise.    They  were  a  statement  of  the  plaintiff's  claim  and  of  the 


SECT.  IV.] 


REGINA   V.    HOLLAND. 


265 


amount  which  she  demanded,  and  were  admissible  as  bearing  upon 
the  genuineness  and  extent  of  her  injuries.  See  Snow  v.  Batchelder, 
8  Cush.  513;  Harrington  v.  Lincoln,  4  Gray,  563. 

Exceptions  overruled.^ 


REGINA  V.  HOLLAND. 

Liverpool  Assizes.     IS-iL 

[Reported  2  Moody  <^-  Robinson,  351.] 

Indictment  for  murder.  The  prisoner  was  charged  with  inflicting 
divers  mortal  blows  and  wounds  upon  one  Thomas  Garland,  and  (among 
others)  a  cut  upon  one  of  his  fingers. 

It  appeared  by  the  evidence  that  the  deceased  had  been  waylaid  and 
assaulted  by  the  prisoner,  and  that,  among  other  wounds,  he  was 
severely  cut  across  one  of  his  fingers  by  an  iron  instrument.  On  being 
brought  to  the  infirmary,  the  surgeon  urged  him  to  submit  to  the  ampu- 
tation of  the  finger,  telling  him,  unless  it  were  amputated,  he  considered 
that  his  life  would  be  in  great  hazard.  The  deceased  refused  to  allow 
the  finger  to  be  amputated.  It  was  thereupon  dressed  by  the  surgeon, 
and  the  deceased  attended  at  the  infirmary  from  da}'  to  day  to  have  his 
wounds  dressed  ;  at  the  end  of  a  fortnight,  however,  lock-jaw  came  on, 
induced  b}'  the  wound  on  the  finger ;  the  finger  was  then  amputated, 
but  too  late,  and  the  lock-jaw  ultimately  caused  death.  The  surgeon 
deposed  that  if  the  finger  had  been  amputated  in  the  first  instance,  he 
thought  it  most  probable  that  the  life  of  the  deceased  would  have  been 
preserved. 

For  the  prisoner,  it  was  contended  that  the  cause  of  death  was 
not  the  wound  inflicted  b}'  the  prisoner,  but  the  obstinate  refusal  of  the 
deceased  to  submit  to  proper  surgical  treatment,  by  which  the  fatal 
result  would,  according  to  the  evidence,  have  been  prevented. 

Maule,  .J.,  however,  was  clearly  of  opinion  that  this  was  no  defence, 
and  told  the  jury  that  if  the  prisoner  wilfully,  and  without  any  justifi- 
able cause,  inflicted  the  wound  on  the  party,  which  wound  was  ulti- 
mately the  cause  of  death,  the  prisoner  was  guilty  of  murder;  that  for 
this  purpose  it  made  no  diflference  whether  the  wound  was  in  its  own 
nature  instantly  mortal,  or  whether  it  became  the  cause  of  death  b}' 
reason  of  the  deceased  not  having  adopted  the  best  mode  of  treatment ; 
the  real  question  is  whether  in  the  end  tlie  wound  inflicted  by  the  pris- 
oner was  the  cause  of  death.  Guilty.' 

1  See  Weiting  v.  MiUston,  77  Wis.  523,  46  N.  W.  879.  —  Ed. 

2  Ace.  Com.  V.  Hackett,  2  All.  1.36.  —  Ed. 


266      ST.    LOUIS   &   SAN   FRANCISCO   R.   R.   CO.  V.  LEAGUE,      [CHAP.  IIL 

ST.  LOUIS  &  SAN  FRANCISCO  RAILROAD  CO.  v.  LEAGUE. 
Supreme  Court  of  Kansas,  1905. 

[Reported  71  Kan.  79.] 

Johnston,  C.  J.  About  nine  o'clock  on  the  night  of  January  6, 1903, 
a  locomotive  attached  to  a  train  of  the  St.  Louis  &  San  Francisco  Rail- 
road Company  scattered  fire  along  the  track  and  started  a  fire  upon  the 
farm  of  L.  E.  League.  It  burned  a  stalk  field,  hedge,  and  other  fences, 
fruit  and  ornamental  trees,  as  well  as  barns,  sheds,  and  cribs.  The 
Leagues  and  their  neighbors,  as  well  as  the  sectionmen  of  the  railroad 
company,  turned  out  and  fought  the  fire,  and  succeeded  in  arresting  its 
progress.  Although  not  entirely  extinguished,  most  of  those  who  were 
assisting,  including  the  railroad  men,  concluded  that  the  danger  was 
past,  and  left  the  premises.  The  fire  was  still  burning  to  some  extent 
in  piles  of  manure,  and  also  in  other  debris,  but,  as  the  night  was  cold, 
the  parties  did  not  prolong  their  stay  beyond  what  they  deemed 
to  be  necessary.  Shortly  after  midnight  Mr.  and  Mrs.  League,  who 
were  greatly  exhausted,  retired ;  but  their  sons  remained  longer  watch- 
ing the  fire.  In  addition  to  other  precautions,  they  plowed  a  number 
of  furrows  as  a  fire  guard  between  the  burned  section  and  the  build- 
ings and  the  stacks.  About  two  o'clock  they  went  into  the  house  and 
retired.  Shortly  afterwards  the  family  was  awakened  to  find  that  the 
fire  had  fanned  up  and  jumped  across  to  a  straw  stack,  and  thence  to 
the  buildings,  and  the  result  was  that  a  great  deal  of  property  was 
destroyed.  Separate  actions  were  brought  by  Mr.  and  Mrs.  League, 
charging  that  their  losses  were  the  result  of  the  negligence  of  the  rail- 
road company.  The  causes  were  consolidated  by  consent  and  tried 
as  one  action.  The  jury  found  in  favor  of  the  plaintiffs,  awarding 
Mrs.  League  S438,  and  Mr.  League  $1,510. 

There  is  abundant  evidence  to  sustain  the  allegation  that  the  fire 
was  originally  started  by  the  railroad  company,  and  also  that  it  was 
negligently  done.  No  complaint  is  made  of  the  rulings  upon  evidence, 
nor  that  the  special  findings,  ninety-eight  in  number,  are  not  supported 
by  the  testimony.  It  is  practically  conceded  that  the  railroad  com- 
pany is  responsible  for  the  property  destroyed  by  the  fire  before  it 
was  arrested  at  midnight,  but  it  is  contended  that  the  company  is 
not  liable  for  the  property  destroyed  after  the  fire  was  revived,  and 
this  constituted  the  greater  part  of  the  loss  which  was  sustained.  It 
is  argued  that  the  fire  set  out  by  the  locomotive  was  not  the  proxi- 
mate cause  of  this  loss;  that  a  person  of  ordinary  inteUigence  and 
prudence  could  not  have  foreseen  or  anticipated  such  a  result;  that 
it  was  not  foreseen  by  the  Leagues  and  their  neighbors  when  the  fire 
was  first  subdued;  and,  if  they  did  not  anticipate  a  further  spread  of 
the  fire,  the  company  cannot  be  expected  to  have  originally  foreseen 
the  actual  and  final  result.  It  is  argued  that  after  the  cessation  of 
the  fire  the  re-kindling  and  later  spread  of  it  was  an  independent, 


SECT.  IV.]      ST.   LOUIS    &    SAN   FRANCISCO    R.    R.    CO.   V.   LEAGUE.      267 

intervening  cause  between  the  original  setting  of  the  fire  and  the  final 
result. 

Within  our  own  decisions  the  original  fault  in  starting  the  fire  may 
be  deemed  to  be  the  proximate  cause  of  the  entire  loss.^  .  .  .  The 
only  circumstance  which  gives  rise  to  any  question  was  the  temporary 
detention  of  the  fire.  The  arrest  of  the  flames  for  a  time,  however, 
did  not  start  a  new  fire,  nor  furnish  a  new  cause  or  force  which  destroyed 
the  League  property.  It  operated  rather  to  diminish  the  destructive 
force  of  a  fire  which  had  been  negligently  started,  and  which  had  never 
been  extinguished.  There  was  continuity  in  the  fire,  and  the  fact 
that  it  should  be  partially  subdued,  and  then  fanned  up  and  carried 
along  by  the  wind,  is  not  outside  of  the  bounds  of  reasonalile  antic- 
ipation. That  those  fighting  the  fire  did  not  entirely  extinguish  it 
goes  more  to  the  question  of  contributory  negligence  than  to  the 
matter  of  proximate  cause.  If,  in  fighting  the  fire,  the  parties  had 
added  a  new  element,  or  put  in  force  an  independent  agency,  which 
destroyed  the  property,  there  would  be  some  reason  for  the  contention 
that  is  made.  For  instance,  if  unnecessary  back  fires  had  been  started, 
or  inflammable  material  added  to  the  slumbering  fire,  or  an  explosion 
had  occurred  in  the  track  of  the  fire,  or  a  tornado  had  arisen  and 
carried  the  fire  a  great  distance,  or  some  other  extraordinary  and  un- 
looked-for thing  had  intervened,  there  might  be  room  to  contend  that 
the  final  burning  was  not  within  the  usual,  ordinary,  and  experienced 
course  of  events.  We  think,  however,  that  it  cannot  be  arbitrarily 
said  that  the  efforts  to  stay  the  progress  of  the  fire,  and  its  temporary 
detention,  was  a  new  and  independent  cause;  nor  that  the  spread  of 
the  fire  and  final  destruction  of  the  property  was  something  unlikely 
to  happen  as  a  result  of  the  original  starting  of  the  fire.  Under  the 
circumstances,  and  within  the  authorities  of  our  own  and  other  courts, 
the  question  of  whether  the  fire  started  by  the  railroad  company  was 
the  proximate  cause  of  the  final  burning,  or  that  the  loss  was  only  a 
remote  consequence,  was  a  question  of  fact  for  the  jury,  and  there  is 
undoubtedly  sufficient  evidence  to  support  the  finding  of  the  jury. 
Railroad  Co.  v.  Stanford,  12  Kan.  354;  Railroad  Co.  v.  Bales,  16  Kan. 
252;  Railway  Co.  v.  McCollum,  2  Kan.  App.  319;  Railway  Co.  v. 
McBride,  54  Kan.  173;  Buck  v.  Railway  Co.,  59  Kan.  328;  Railway  Co. 
V.  Blaker,  68  Kan.  244;  Railway  Co.  v.  Nitsche,  126  Ind.  229;  Poep- 
pers  V.  M.  K.  &  T.  Ry  Co.,  67  Mo.  715;  Hightower  v.  M.  K.  &  T.  Ry. 
Co.,  67  Mo.  726;  Tyler  v.  Ricamore,  87  Va.  466;  Railway  Co.  v. 
Kellogg,  94  U.  S.  473;  1  Thompson  on  Negligence,  §161;  13  A.  & 
E.  Ency.  of  Law  (2d  ed.)  446,  and  cases  cited. 

Whether  the  Leagues  exercised  the  care  which  a  prudent  person 
should  in  extinguishing  the  fire,  in  watching  it  after  it  was  arrested, 
and  in  protecting  their  property  as  against  a  re-kindling  of  the  fire, 
was  submitted  to  the  jury  under  instructions  of  which  the  railroad 
company  has  no  cause  to  complain.     After  the  fire  was  discovered,  it 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


268  HENDKICKSON   V.   COMMONWEALTH.  [CHAP.  III. 

was  the  duty  of  the  plaintiffs  below  to  take  all  reasonable  and  prac- 
tical means  to  extinguish  it  and  to  protect  their  property.  Only  rea- 
sonable diligence,  however,  was  required  in  this  respect,  and  it  cannot 
be  said  as  a  matter  of  law  that  such  care  was  not  exercised  by  them. 
Whether  parties  who  make  efforts  to  stay  the  progress  of  a  fire  negli- 
gently started  have  used  due  care  in  this  regard  is  ordinarily  a  ques- 
tion for  the  jury.  Having  fought  and  partially  subdued  the  fire,  and 
then  mistakenly  supposed  that  the  fire  guards  made  and  the  precau- 
tions taken  to  prevent  a  further  spread  of  the  fire  were  sufficient,  and 
that  the  danger  was  past,  makes  the  matter  of  whether  they  have  used 
reasonable  care  peculiarly  one  for  the  determination  of  the  jury. 


HENDRICKSON   v.   COMMONWEALTH. 

Court  of  Appeals  of  Kentucky.     1887. 

[Reported  85  Kentucky,  281.] 

Judge  Lewis  delivered  the  opinion  of  the  court :  — 

Under  an  indictment  for  the  murder  of  his  wife,  appellant  was  con- 
victed of  manslaughter. 

From  the  testimony  of  a  daughter  of  the  deceased  and  step-daughter 
of  appellant,  the  only  person  present  at  the  time,  it  appears  that  a 
difficulty  took  place  at  their  residence  at  night  after  they  had  retired 
to  bed,  in  the  winter  of  1885-86,  and,  in  the  language  of  the  witness, 
occurred  as  follows :  "  The  sow  rooted  open  the  door  of  the  cabin,  and 
the}'  (her  mother  and  father)  fell  out  over  driving  her  out,  and  he 
choked,  beat,  scratched,  and  struck  her,  and  she  knocked  him  down 
with  the  iron  shovel,  and  got  on  him,  choked  him,  and  asked  him  how 
he  felt ;  and  he  started  towards  his  breeches  and  said  :  '  If  I  had  my 
knife  —  I  will  get  nw  knife  and  I'll  cut  your  dog  gon'd  throat;  '  and 
that  she  ran  out  at  the  door  and  did  not  return  that  night ;  that  he 
shut  the  door  after  her  and  propped  it  with  a  stick  of  wood  and  went 
to  bed."  She  further  stated  that  next  morning  she  went  to  look  for 
her  mother  and  found  her  lying  in  the  snow  dead,  and  when  she  started 
appellant  told  her  to  take  her  mother's  shoes  and  stockings. 

The  statement  to  the  jury,  made  by  appellant  himself,  is,  that  the 
deceased  commenced  the  fight,  getting  him  down  on  the  floor,  when  he 
choked  and  bit  her,  and  she  then  knocked  him  down  with  an  iron 
shovel,  and  got  on  and  choked  him,  and  then  jumped  up  and  ran  out 
of  the  door,  saying  she  wouhl  have  him  arrested  and  put  in  jail.  He. 
however,  admits  he  said  to  her  that  if  he  had  his  knife  he  would  cut 
her,  and  started  for  his  breeches. 

From  the  testimony  of  a  witness  it  appears  that  the  place  where  the 
deceased  lay  was  within  about  one  hundred  yards  of  his  house,  and 
about  half  mile  of  her  residence,  and  that  in  going  to  the  place  where 
she  was   found  she  had  passed   by  the  gate  of  another  person,  and 


SECT.  IV.]  HENDRICKSON  V.   COMMONWEALTH.  269 

within  twenty  feet  of  his  house,  which  was  two  hundred  and  fifty  yards 
nearer  her  own  residence  than  was  the  place  where  she  died.  When 
found  she  was  lying  on  her  face  dead  and  badly  frozen,  the  weather 
being  extremel}'  cold,  and  where  she  lay  were  signs  of  stirring  in  the 
snow,  which  was  about  eighteen  inches  deep,  ^^'hen  she  left  her 
residence  she  was  barefooted  and  had  on  very  little  clothing,  and  along 
the  route  she  took,  which  led  through  briers,  there  were  small  quanti- 
ties of  blood  and  fragments  of  clothing  that  had  been  torn  otf  by  the 
briers  ;  and  at  another  place  she  had  struck  her  ankle  against  the  end 
of  a  log  and  it  bled  freely.  The  witnesses  testify  that  there  were 
scratches  on  each  side  of  her  neck,  and  finger-prints  on  her  throat,  and 
prints  of  teeth  on  her  left  arm  and  back  of  her  hands,  and  her  legs 
from  knees  down  were  lacerated  b}'  the  briers.  According  to  the  tes- 
timony of  a  physician,  she  was  eight  months  and  one  week  gone  in 
pregnane}' ;  but  she  had  no  wound,  bruise,  or  other  mark  of  violence 
that  could  have  produced  death.  He  also  testified  that  appellant  was 
badly  crippled  and  paralyzed  in  one  arm,  and  that  on  the  day  of  his 
examining  trial  he  had  a  considerable  bruise  about  his  face  and  a  bad- 
looking  one  about  the  eye.  ^ 

There  is  evidence  that  the  deceased  was  a  high-tempered  woman,  I 
hard  to  get  along  with.  She  told  a  witness  of  fighting  and  whipping 
her  husband,  who  was  a  cripple,  and  had  but  one  arm  he  could  use, 
though  the  daughter  testifies  that  in  their  fights  he  whipped  her.  It 
further  appears  that  she  had  on  other  occasions  ran  oflT  and  left  her 
husband,  and  at  one  time  she  came  to  the  house  of  a  witness  and 
staj'ed  all  night,  leaving  a  young  baby  with  her  husband,  sajing  to  the 
witness  that  she  had  got  mad  and  run  off. 

The  lower  court  refused  to  instruct  the  jurv,  at  the  instance  of 
appellant's  counsel,  that  before  finding  him  guilty  they  must  believe 
the  death  of  his  wife  was  produced  b}'  him  alone  and  in  no  other  wa}' ; 
and  also  refused  to  instruct  that  in  order  to  convict  they  must  believe 
he  intentionally  exposed  her,  or  forced  her  to  expose  herself,  to  the 
cold  under  such  circumstances  that  her  death  would  be  the  probable 
and  natural  consequence  of  such  exposure,  and  that  she  died  from  such 
exposure  ;  but  in  lieu  of  those  asked  by  his  counsel,  gave  the  follow- 
ing :  "  If  the  jury  believe  .  .  .  that  the  defendant  ...  in  sudden  heat 
and  passion,  and  not  in  his  necessary  or  reasonably  necessary  self- 
defence,  used  such  force  and  violence  towards  his  wife  as  to  cause  her 
to  leave  his  house  from  fear  of  death  or  great  bodih'  harm  at  his  hands, 
and  from  exposure  to  cold  her  death  was  produced  by  the  said  act  of 
the  defendant,  they  should  find  him  guilty  of  manslaughter,"  etc. 

"  Forcing  a  person  to  do  an  act  which  causes  his  death  renders  the 
death  the  guilt}'  deed  of  him  who  compelled  the  deceased  to  do  the 
act ;  and  it  is  not  material  whether  the  force  be  applied  to  the  body  or 
to  the  mind  ;  but  if  it  were  the  latter,  it  must  be  shown  there  was  the 
apprehension  of  immediate  violence,  and  well-grounded  from  the  cir- 
cumstances by  which  the  deceased  was  surrounded.     And  it  need  not 


270 


HENDEICKSON    V.   COMMONWEALTH. 


[chap.  III. 


appear  that  there  was  no  other  way  of  escape  ;  but  it  must  appear  that 
the  step  was  taken  to  avoid  the  threatened  danger,  and  was  such  as  a 
reasonable  man  might  take."  Russell  on  Crimes,  489  ;  3  Greenleaf 
on  Evidence,  section  142. 

In  a  case  where  the  evidence  was  that  the  defendant,  a  husband, 
beat  his  wife  and  threatened  to  throw  her  out  of  the  window  and  to 
murder  her,  and  that  b}'  such  threats  she  was  so  terrified  that,  through 
fear  of  his  putting  his  threats  into  execution,  she  threw  herself  out  of 
the  window,  and  of  the  beating  and  bruises  received  b}-  the  fall  she 
died,  it  was  lield  that  if  her  death  was  occasioned  parti}-  by  the  blows, 
and  partly  by  the  fall,  yet  if  she  was  constrained  bv  her  husband's 
threats  of  furtlier  violence,  and  from  a  well-grounded  apprehension  of 
his  doing  such  further  violence  as  would  endanger  her  life,  he  was 
answerable  for  the  consequences  of  the  fall  as  much  as  if  he  had 
thrown  her  out  of  the  window  himself.  And  in  another  case,  where  the 
deceased,  from  a  well-grounded  apprehension  of  a  further  attack  which 
would  have  endangered  his  life,  endeavored  to  escape,  and  in  so  doing 
was  fatally  injured  from  another  cause,  it  was  held  murder.  (See 
Wharton  on  Homicide,  section  374,  where  these  and  other  cases  are 
cited.) 

The  case  of  State  v.  Preslar,  3  N.  C.  421,  was  where,  after  the 
husband  had  desisted  from  beating  his  wife,  she  went  off  a  little 
distance  in  the  yard  and  sat  down,  and  the  husband,  after  about  five 
minutes,  went  into  the  house  and  laid  upon  the  bed  with  his  clothes 
on,  and  about  half  an  hour  afterwards  she  started,  in  company  with 
her  son,  to  tlie  house  of  her  father,  about  two  miles  off;  but  when  she 
got  within  two  hundred  yards  of  her  father's  house  she  said  she  did 
not  wish  to  go  there  until  morning,  it  being  in  the  night-time,  and  laid 
down  on  a  bed-quilt  in  the  woods.  Early  next  morning  she  gave 
notice  to  the  inmates  of  the  house  of  her  presence,  but  was  not  able 
to  walk  there,  and  the  next  day  died.  In  that  case  the  court  decided 
that  as  she  had  exposed  herself  thus  without  necessity,  and  there  were, 
besides,  circumstances  showing  deliberation  in  leaving  her  home,  the 
husband  could  not  be  held  responsible  to  the  extent  of  forfeiting  his 
life.  But  the  court  at  the  same  time  said  that  "if,  to  avoid  the  rage 
of  a  brutal  husband,  a  wife  is  compelled  to  expose  herself  by  wading 
through  a  swamp  or  jumping  into  a  river,  the  husband  is  responsible  for 
the  consequences." 

The  question  before  us  is,  whether,  tested  by  the  principles  stated 
and  illustrated,  the  instruction  quoted  correctly'  and  full}-  embodies 
the  law  applicable  to  tliis  case. 

It  will  be  perceived  that  the  jur}-  were  authorized,  by  the  instruction, 
to  convict,  if  they  believed  tlie  accused  used  such  force  and  violence  as 
to  cause  the  deceased  to  leave  the  house  from  fear  of  death  or  great 
bodil}-  harm  at  his  hands.  But  the}-  were  not  instructed,  as  thej^  should 
have  been  before  convicting,  to  believe,  nor  permitted  to  inquire, 
whether  or  not  such  fear  was  well  grounded  or  reasonable.     The  jury 


SECT.   IX.]  KEGINA   V.   DALLOWAY.  271 

might,  and  from  their  verdict  doubtless  did,  believe  she  left  the  house 
from  fear  of  death  or  great  bodily  harm,  yet,  if  they  had  taken  into 
consideration  the  previous  conduct  of  the  deceased,  her  disposition  and 
ability  to  fight  with  her  husband,  their  comparative  physical  powers, 
and  all  the  circumstances  proved  in  the  case,  they  might  not  have 
believed  her  fear  was  well  grounded  or  reasonable,  and  unless  it  was, 
the  accused  should  not  be  held  responsible  for  her  death,  for  in  such 
case  he  could  not  be  regarded  as  forcing  her  to  leave  the  house. 

The  jury  should  have  been  further  instructed  that,  to  convict,  they 
must  believe  the  death  of  the  wife  by  freezing  was  the  natural  and 
probable  consequence  of  leaving  the  house  at  the  time  and  under  the 
circumstances.  ^ 

There  is  no  evidence  the  accused  prevented  her  re-entrance  into  the 
house,  as  assumed  in  the  instruction  in  regard  to  murder,  and  it  was 
error  to  make  reference  thereto.  For  the  errors  indicated,  the  judg- 
ment is  reversed  for  a  new  trial,  and  other  proceedings  consistent  with 
this  opinion. 


REGINA   V.  DALLOWAY. 
Stafford  Assizes.     1847. 

[Reported  2  Cox  C.  C.  273.] 

The  prisoner  was  indicted  for  the  manslaughter  of  one  Henry  Clarke^ 
by  reason  of  his  negligence  as  driver  of  a  cart. 

It  appeared  that  the  prisoner  was  standing  up  in  a  spring-cart, 
and  having  the  conduct  of  it  along  a  public  thoroughfare.  The  cart 
was  drawn  b}'  one  horse.  The  reins  were  not  in  the  hands  of  the 
prisoner,  but  loose  on  the  horse's  back.  While  the  cart  was  so  pro- 
ceeding down  the  slope  of  a  hill,  the  horse  trotting  at  the  time,  the 
deceased  child,  who  was  about  three  years  of  age,  ran  across  the  road 
before  the  horse,  at  the  distance  of  a  few  yards,  and  one  of  the  wheels  of 
the  cart  knocking  it  down  and  passing  over  it  caused  its  death.  It 
did  not  appear  that  the  prisoner  saw  the  child  in  the  road  before  tlie 
accident. 

Spooner,  for  the  prosecution,  submitted  that  the  prisoner,  in  conse- 
quence of  his  neghgeuce  in  not  using  reins,  was  responsible  for  the 
death  of  the  child  ;  but 

Erle,  J.,  in  summing  up  to  the  jur}-,  directed  them  that  a  party 
neglecting  ordinary  caution,  and,  by  reason  of  that  neglect,  causing  the 
death  of  another,  is  guilty  of  manslaughter ;  that  if  the  prisoner  had 
reins,  and  by  using  the  reins  could  have  saved  the  child,  he  was  guilt}- 
of  manslaughter  ;  but  that  if  they  thought  he  could  not  have  saved  the 
child  by  pulling  the  reins,  or  otherwise  by  their  assistance,  they  must 
acquit  him. 

The  jury  acquitted  the  prisoner. 


272  SCHEFFER   V.   WASHINGTON    CITY,    ETC.,    R.    R.    CO.       [CHAP.  III. 


K^ 


SCHEFFER   v.  WASHINGTON   CITY,  VIRGINIA    MIDLAND, 
AND  GREAT  SOUTHERN  RAILROAD   CO. 

Supreme  Court  of  the  United  States,  1881. 

[Reported  105  U.  S.  249.] 

Miller,  J.  The  plaintiffs,  executors  of  Charles  Scheffer,  deceased, 
brought  this  action  to  recover  of  the  Washington  City,  Virginia 
Midland,  and  Great  Southern  Railroad  Company  damages  for  his 
death,  which  they  allege  resulted  from  the  negligence  of  the  company 
while  carrying  him  on  its  road.  The  defendant's  demurrer  to  their 
declaration  was  sustained,  and  to  revers^  tiie  judgment  rendered 
thereon  they  sued  out  this  writ  of  error. 

The  statute  of  Virginia,  under  which  the  action  was  brought,  is,  as 
to  the  question  raised  on  the  demurrer,  identical  with  those  of  all  the 
other  States,  giving  the  right  of  recovery  when  the  death  is  caused 
by  such  default  or  neglect  as  would  have  entitled  the  party  injured 
to  recover  damages  if  death  had  not  ensued. 

The  declaration,  after  alleging  the  carelessnes  of  the  officers  of  the 
company,  by  which  a  collision  occurred  between  the  train  on  which 
Scheffer  was  and  another  train,  on  the  seventh  day  of  December, 
1874,  proceeds  as  follows: 

"Whereby  said  sleeping-car  was  rent,  broken,  torn,  and  shattered, 
and  by  means  whereof  the  said  Charles  Scheffer  was  cut,  bruised, 
maimed,  and  disfigured,  wounded,  lamed,  and  injured  about  his  head, 
face,  neck,  back,  and  spine,  and  by  reason  whereof  the  said  Charles 
Scheffer  became  and  was  sick,  sore,  lame,  and  disordered  in  mind  and 
body,  and  in  his  brain  and  spine,  and  by  means  whereof  phantasms, 
illusions,  and  forebodings  of  unendurable  evils  to  come  upon  him,  the 
said  Charles  Scheffer,  were  produced  and  caused  upon  the  brain  and 
mind  of  him,  the  said  Charles  Scheffer,  which  disease,  so  produced 
as  aforesaid,  baffled  all  medical  skill,  and  continued  constantly  to  dis- 
turb, harass,  annoy,  and  prostrate  the  nervous  system  of  him,  the  said 
Charles  Scheffer,  to  wit,  from  the  seventh  day  of  December,  A.D. 
1874,  to  the  eighth  day  of  August,  1875,  when  said  phantasms,  illu- 
sions, and  forebodings,  produced  as  aforesaid,  overcame  and  prostrated 
all  his  reasoning  powers,  and  induced  him,  the  said  Charles  Scheffer, 
to  take  his  life  in  an  effort  to  ajoid  said  phantasms,  illusions,  and 
forebodings,  which  he  then  and  there  did,  whereby  and  by  means  of 
the  careless,  unskillful,  and  negligent  acts  of  the  said  defendant  afore- 
said, the  said  Charles  Scheffer,  to  wit,  on  the  eighth  day  of  August, 


'C  I  i  t*  f 


./  )i.«M.  /^  ■ 


/  / 


SECT.  IV,]       SCHEFFEK   V.   WASHINGTON   CITY,   ETC.,    E.    R.   CO.  273 

1875,   lost   his    life   and    died,    leaving    him    surviving    a    wife    and 
children." 

The  Circuit  Court  sustained  the  demurrer  on  the  ground  that  the 
death  of  Scheffer  was  not  due  to  the  negligence  of  the  company  in  the 
judicial  sense  which  made  it  liable  under  the  statute.  That  the  rela- 
tion of  such  negligence  was  too  remote  as  a  cause  of  the  death  to  justify 
recovery,  the  proximate  cause  being  the  suicide  of  the  decedent  — 
his  death  by  his  own  immediate  act. 

In  this  opinion  we  concur. 

Two  cases  are  cited  by  counsel,  decided  in  this  court,  on  the  sub- 
ject of  the  remote  and  proximate  causes  of  acts  where  the  liability  of 
the  party  sued  depends  on  whether  the  act  is  held  to  be  the  one  or  the 
other;  and,  though  relied  on  by  plaintiffs  we  think  they  both  sustain 
the  judgment  of  the  Circuit  Court. 

The  first  of  these  is  Insurance  Company  v.  Tweed,  7  Wall.  44. 

In  that  case  a  policy  of  fire  insurance  contained  the  usual  clause  of 
exception  from  liability  for  any  loss  which  might  occur  "  by  means  of 
any  invasion,  insurrection,  riot,  or  civil  commotion,  or  any  military 
or  usurped  power,  explosion,  earthquake,  or  hurricane." 

An  explosion  took  place  in  the  Marshall  warehouse,  which  threw 
down  the  walls  of  the  Alabama  warehouse  —  the  one  insured,  sit- 
uated across  the  street  from  Marshall  warehouse  —  and  by  this  means, 
and  by  the  sparks  from  the  Eagle  Mill,  also  fired  by  the  explosion 
facilitated  by  the  direction  of  the  wind,  the  Alabama  warehouse  was 
burned.  This  court  held  that  the  explosion  was  the  proximate  cause 
of  the  loss  of  the  Alabama  warehouse,  because  the  fire  extended  at 
once  from  the  Marshall  warehouse,  where  the  explosion  occurred. 
The  court  said  that  no  new  or  intervening  cause  occurred  between  the 
explosion  and  the  burning  of  the  Alabama  warehouse.  That  if  a  new 
force  or  power  had  intervened,  sufficient  of  itself  to  stand  as  the  cause 
of  the  misfortune,  the  other  must  be  considered  as  too  remote. 

This  case  went  to  the  verge  of  the  sound  doctrine  in  holding  the 
explosion  to  be  the  proximate  cause  of  the  loss  of  the  Alabama  ware- 
house; but  it  rested  on  the  ground  that  no  other  proximate  cause  was 
found. 

In  Milwaukee  &  St.  Paul  Railway  Co.  v.  Kellogg  (94  U.  S.  469), 
the  sparks  from  a  steam  ferryboat  had,  through  the  negligence  of  its 
owner,  the  defendant,  set  fire  to  an  elevator.  The  sparks  from  the 
elevator  had  set  fire  to  the  plaintiff's  saw  mill  and  lumber  yard,  which 
were  from  three  to  four  hundred  feet  from  the  elevator.  The  court 
was  requested  to  charge  the  jury  that  the  injury  sustained  by  the  plain- 
tiff was  too  remote  from  the  negligence  to  afford  a  gromid  for  a  recovery. 

Instead  of  this,  the  court  submitted  to  the  jury  to  find  "whether 
the  burning  of  the  mill  and  lumber  was  the  result  naturally  and  rea- 
sonably to  be  expected  from  the  burning  of  the  elevator;  whether  it 
was  a  result  which  under  the  circumstances  would  not  naturally  follow 


274  SCHEFFER   V.   WASHINGTON    CITY,    ETC.,    R.    R.    CO.      [CHAP.  III. 


I'M^'rV- 


from  the  burning  of  the  elevator,  and  whether  it  was  the  result  of  the 
continued  effect  of  the  sparks  from  the  steamboat,  without  the  aid  of 
other  causes  not  reasonably  to  be  expected." 

This  court  affirmed  the  ruling,  and  in  commenting  on  the  difficulty 
of  ascertaining,  in  each  case,  the  line  between  the  proximate  and  the 
remote  causes  of  a  wrong  for  which  a  remedy  is  sought,  said :  "  It  is 
admitted  that  the  rule  is  difficult.  But  it  is  generally  held  that,  in 
order  to  warrant  a  finding  that  negligence  or  an  act  not  amounting  to 
wanton  wrong  is  the  proximate  cause  of  an  injury,  it  must  appear  that 
the  injury  was  the  natural  and  probable  consequence  of  the  negli- 
gence or  Avrongful  act,  and  that  it  ought  to  have  been  foreseen  in  the 
light  of  the  attending  circumstances."  To  the  same  effect  is  the  lan- 
guage of  the  court  in  McDonald  v.  Snelling,  14  Allen  (Mass.),  290. 

j3ringing  the  case  before  us  to  the  test  of  these  principles,  it  presents 
no  llifficulty.    The  proximate  cause  of  the  death  of  Scheffer  was  his 
own  act  of  self-destruction.    It  was  within  the  rule  in  both  these  cases 
>t^      A  new  cause,  and  a  sufficient  cause  of  death. 

The  argument  is  not  sound  which  seeks  to  trace  this  immediate 
cause  of  the  death  through  the  previous  stages  of  mental  aberration, 
physical  suffering,  and  eight  months'  disease  and  medical  treatment 
to  the  original  accident  on  the  railroad.  Such  a  course  of  possible  or 
t  ven  logical  argument  would  lead  back  to  that  "  great  first  cause  least 
understood,"  in  which  the  train  of  all  causation  ends. 

The  suicide  of  Scheffer  was  not  a  result  naturally  and  reasonably  to 
be  expected  from  the  injury  received  on  the  train.  It  was  not  the 
natural  and  probable  consequence,  and  could  not  have  been  foreseen 
in  the  light  of  the  circumstances  attending  the  negligence  of  the 
officers  in  charge  of  the  train. 

His  insanity,  as  a  cause  of  his  final  destruction,  was  as  little  the 
natural  or  probable  result  of  the  negligence  of  the  railway  officials  as 
his  suicide,  and  each  of  these  are  casual  or  unexpected  causes,  inter- 
vening between  the  act  which  injured  him  and  his  death. ^ 

Judgment  affirmed. 


1  See  Bro^vTi  v.  American  S.  &  W.  Co.,  43  Ind.  App.  560,  88  N.  E.  80;  Daniels  c. 
New  York.  N.  H.,  &  H.  R.  R.,  183  Mass.  393,  67  N.  E.  424;  Malone  v.  Cayzer,  45 
Scot.  L.  R.  351,  Smith  Cas.  Torts,  46.  —  Ed. 


SECT.   IV.]  PEOPLE    V.   LEWIS.  275 

PEOPLE  V.  LEWIS. 
Supreme  Couht  of  California.     1899. 

[Reported  124  Cal.  551.] 

Temple,  J.*  .  .  .  Defendant  and  deceased  were  brothers-in-law,  and 
not  altogether  friendh',  although  the}-  were  on  speaking  and  visituig 
terms.  On  the  morning  of  the  homicide  the  deceased  visited  the  resi- 
dence of  the  defendant,  was  received  in  a  friendly  manner,  but  after  a 
while  an  altercation  arose,  as  a  result  of  which  defendant  shot  deceased 
in  the  abdomen,  inllicting  a  wound  that  was  necessarily  mortal.  Farrell 
fell  to  the  ground,  stunned  for  an  instant,  but  soon  got  up  and  went 
into  the  house,  saying :  "  Shoot  me  again  ;  I  shall  die  anyway."  His 
strength  soon  failed  him,  and  he  was  put  to  bed.  Soon  afterward, 
about  how  long  does  not  appear,  but  within  a  very  few  minutes,  when 
no  other  person  was  present  except  a  lad  about  nine  years  of  age, 
nephew  of  the  deceased  and  son  of  the  defendant,  the  deceased  pro- 
cured a  knife  and  cut  his  throat,  inflicting  a  ghastl}-  wound  from  the 
effect  of  which,  according  to  the  medical  evidence,  he  must  necessarily 
have  died  in  five  minutes.  The  wound  inflicted  bv  the  defendant  sev- 
ered the  mesenteric  artery,  and  medical  witnesses  testified  that  under 
the  circumstances  it  was  necessarily  mortal,  and  death  would  ensue 
within  one  hour  from  the  effects  of  the  wound  alone.  Indeed,  the  evi- 
dence was  that  usually  the  effect  of  such  a  wound  would  be  to  cause 
death  in  less  time  than  tliat,  but  possibly  the  omentum  mav  have  filled 
the  wound,  and  thus,  bj'  preventing  the  flow  of  the  blood  from  the 
body,  have  sta3-ed  its  certain  effect  for  a  short  period.  Internal  hemor- 
rhage was  still  occurring,  and,  with  other  eff'ects  of  the  gunshot  wound, 
produced  intense  pain.  The  medical  witnesses  thought  that  death  was 
accelerated  by  the  knife  wound.  Perhaps  some  of  them  considered  it 
the  immediate  cause  of  death. 

Now,  it  is  contended  that  this  is  a  case  where  one  languishing  from 
a  mortal  wound  is  killed  by  an  intervening  cause,  and,  therefore,  de- 
ceased was  not  killed  by  Lewis.  To  constitute  manslaughter,  the 
defendant  must  have  killed  some  one,  and  if,  though  mortall}-  wounded 
by  the  defendant,  Farrell  actually'  died  from  an  independent  intervening 
cause,  Lewis,  at  the  most,  could  only  be  guilt}'  of  a  felonious  attempt. 
He  was  as  efl^ectually  prevented  from  killing  as  he  would  have  been  if 
some  obstacle  had  turned  aside  the  bullet  from  its  course  and  left 
Farrell  unwounded.  And  they  contend  that  the  intervening  act  was 
the  cause  of  death,  if  it  shortened  the  life  of  Farrell  for  any  period 
whatever. 

The  attorney  general  does  not  controvert  the  general  proposition 
here  contended  for,  but  argues  that  the  wound  inflicted  by  the  defend* 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


276  PEOPLE   V.   LEWIS.  [CHAP.  III. 

ant  was  the  direct  cause  of  the  throat  cutting,  and,  therefoi'e,  defendant 
is  criminally  responsible  for  the  death.  He  illus-trates  his  position  hy 
supposing  a  case  oi  one  dangerously  wounded,  and  whose  wounds  had 
been  bandaged  by  a  surgeon.  He  says,  suppose  through  the  fever  and 
pain  consequent  upon  the  wound  the  patient  becomes  frenzied  and  tears 
away  the  bandage,  and  thus  accelerates  his  own  death ;  would  not  the 
defendant  bi-  responsible  for  a  homicide?  Undoubtedly  he  would  be, 
for  in  tlie  ease  supposed  the  deceased  died  from  the  wound,  aggra- 
vated, it  is  true,  by  the  restlessness  of  the  deceased,  but  still  the  wound 
inflicted  by  the  defendant  produced  death.  Whether  such  is  the  case 
here  is  the  question. 

The  attorney  general  seems  to  admit  a  fact  which  I  do  not  concede, 
that  the  gunshot  wound  was  not,  when  Farrell  died,  then  itself  directl}' 
contributory  to  the  death.  I  think  the  ]uvy  were  warranted  in  finding 
that  it  was.  But  if  the  deceased  did  die  from  the  effect  of  the  knife 
wound  alone,  no  doubt  the  defendant  would  be  responsible,  if  it  was 
made  to  appear,  and  the  jur}'  could  have  found  from  the  evidence,  that 
the  knife  wound  was  caused  by  the  wound  inflicted  b}-  the  defendant 
in  the  natural  course  of  events.  '  If  the  relation  was  causal,  and  the 
wounded  condition  of  the  deceased  was  not  merely  the  occasion  upon 
which  another  cause  intervened,  not  produced  by  the  first  wound  or 
related  to  it  in  other  than  a  causal  way,  then  defendant  is  guilty  of  a 
homicide.  ■  But,  if  the  wounded  condition  only  afforded  an  opportunity 
for  another  unconnected  person  to  kill,  defendant  would  not  be  guilty 
of  a  homicide,  even  though  he  had  inflicted  a  mortal  wound.  In  such 
case,  I  think,  it  would  be  true  that  the  defendant  was  thus  prevented 
from  killing. 

The  case,  considered  under  this  view,  is  further  complicated  from  the 
fact  that  it  is  impossible  to  determine  whether  deceased  was  induced  to 
cut  his  throat  through'  pain  produced  by  the  wound.  'May  it  not  have 
been  from  remorse,  or  from  a  desire  to  shield  his  brother-in-law?  In 
either  case,  the  causal  relation  between  the  knife  wound  and  the  gun- 
shot wound  would  seem  to  be  the  same.  In  either  case,  if  defendant  had 
not  shot  the  deceased,  the  knife  wound  would  not  have  been  inflicted. 

Suppose  one  assaults  and  wounds  another,  intending  to  take  life,  but 
the  wound,  though  painful,  is  not  even  dangerous,  and  the  wounded 
man  knows  tiiat  it  is  not  mortal,  and  yet  takes  his  own  life  to  escape 
pain,  would  it  not  be  suicide  only?  Yet  the  wound  inflicted  by  the 
assailant  would  have  the  same  relation  to  death  which  the  original 
wound  in  this  case  has  to  the  knife  wound.  The  wound  induced  the 
suicide,  but  the  wound  was  not,  in  the  usual  course  of  things,  the  cause 
of  the  suicide. 

Though  no  case  altogether  like  this  has  been  found,  yet,  as  was  to 
have  been  expected,  the  general  subject  has  often  l)een  considered.  In 
1  Hale's  Pleas  of  the  Crown,  428,  the  law  is  stated.  So  far  as  mate- 
rial here,  his  views  may  be  thus  summai'ized  :  1.  If  one  gives  another 
a  dangerous  wound  which  might  by  very  skilful  treatment  be  cured, 


11 


SECT.  IV.]  PEOPLE   V.   LEWIS.  277 

and  is  not,  it  is  a  case  of  homicide.  2.  If  one  inflicts  a  dangerous 
wound,  and  the  man  dies  from  the  treatment,  "  if  it  can  clearly  appear 
that  the  medicine  and  not  the  wound  was  the  cause  of  the  death,  it 
seems  it  is  not  homicide,  but  then  it  must  appear  clearly  and  certain!}- 
to  be  so."  3.  If  one  receives  a  wound,  not  in  itself  mortal,  and  fever 
or  gangrene  sets  in  because  of  improper  treatment  or  unruly  conduct  of 
the  patient,  and  death  ensues,  it  is  homicide,  "for  that  wound,  though 
it  was  not  the  immediate  cause  of  his  death,  ^'et  it  was  the  mediate 
cause  thereof,  and  the  fever  or  gangrene  was  the  immediate  cause  of 
his  death,  yet  the  wound  was  the  cause  of  the  gangrene  or  fever,  and 
so,  consequently,  is  causa  causati^  4.  One  who  hastens  the  death  of 
a  person  languishing  with  a  mortal  disease  is  guilt}'  of  a  homicide,  for 
the  death  is  not  merely  by  a  visitation  of  Providence,  but  the  hurt  has- 
tens it,  and  the  wrongdoer  cannot  thus  apportion  the  responsibility, 
etc.  It  would  make  no  difference,  I  presume,  if  the  person  killed 
was  languishing  from  a  mortal  wound,  rather  than  from  an  ordinary 
disease. 

In  State  v.  Scates,  5  Jones,  420,  a  child  was  found  dead,  badly 
burned,  and  with  a  wound  from  a  blow  on  the  head.  The  burning  was 
admitted  by  defendant,  but  the  blow  was  not,  and  it  was  not  proven 
who  inflicted  it.  The  medical  witness  thought  the  burning  was  the 
primary  cause  of  death,  but  the  blow  may  have  hastened  it.  The  jury 
was  told  that  if  it  was  doubtful  which  was  the  immediate  cause  of  death, 
they  must  acquit,  but  if  they  found  that  the  burning  was  the  primary 
cause  of  death,  and  the  blow  only  hastened  it,  they  could  convict. 

The  case  was  reversed,  the  appellate  court  holding  that  the  blow 
might  have  been  the  independent  act  of  another,  and,  if  it  hastened  the 
death,  it,  and  not  the  burning,  was  the  cause  of  death. 

In  Bush  V.  Commonwealth,  78  Ky.  268,  the  deceased  received  a 
wound  not  necessarily  mortal,  and,  in  consequence,  was  taken  to  a 
hospital,  where  she  took  scarlet  fever  from  a  nurse  and  died  of  the 
fever.  The  court  said:  "When  the  disease  is  a  consequence  of  the 
wound,  although  the  proximate  cause  of  the  death,  the  person  inflicting 
the  wound  is  guilty,  because  the  death  can  be  traced  as  a  result  natu- 
rally flowing  from  the  wound  and  coming  in  the  natural  order  of  things  ; 
but  when  there  is  a  supervening  cause,  not  naturally  intervening  by 
reason  of  the  wound,  the  death  is  by  visitation  of  Providence,  and  not 
from  the  act  of  the  party  inflicting  the  wound.  ...  If  the  death  was 
not  connected  with  the  wound  in  the  regular  chain  of  causes  and  con- 
sequences, there  ought  not  to  be  any  responsibility." 

The  last  case,  in  my  opinion,  so  far  as  it  goes,  correctly  states  the 
]aw.  The  facts  of  this  case  do  not  bring  it  strictly  within  any  of  the 
propositions  found  in  Hale's  Pleas  of  the  Crown.  The  second  and  third 
propositions  both  predicate  a  wound  not  necessarily  mortal.  What  the 
law  would  have  been  in  the  second  case  had  the  wound  been  mortal, 
and  the  applications  had  hastened  the  death,  is  not  stated.  It  seems 
to  me,  however,  the  case  of  a  person  already  languishing  from  a  mortal 


278  PEOPLE    V.    LEWIS.  [chap.  IIL 

wound  is  precisely  that  of  one  suffering  from  a  mortal  disease.  Cer- 
tainly the  wilful  and  unlawful  killing  of  such  a  person  would  be  a  fel- 
ony, and  it  cannot  be  true  that  the  first  offender  and  the  last  can  each 
be  guilty  of  murdering  the  same  man,  — if  they  had  no  connection  with 
each  other,  and  both  wounds  were  not  actively  operating  to  produce 
death  when  it  occurred. 

But  wh}'  is  it  that  one  who  inflicts  a  wound  not  mortal  is  guilty  of  a 
homicide,  if  through  misconduct  of  the  patient  or  unskilful  treatment 
gangrene  or  fever  sets  in,  producing  a  fatal  termination,  —  when,  if  it 
can  be  clearh'  made  to  appear  that  the  medicine  and  not  the  wound 
was  the  cause  of  the  death,  he  is  not  guilty  of  a  homicide?  In  each 
case  if  the  wound  had  not  been,  the  treatment  would  not  have  been, 
and  the  man  would  not  then  have  died.  In  each  case  the  wound  occa- 
sioned the  treatment  which  caused  or  contributed  to  the  death.  The 
reason,  I  think,  is  found  in  the  words  advisedh'  used  in  the  last  sen- 
tence. In  the  one  case  the  treatment  caused  the  death,  and  in  the 
other  it  merely  contributed  to  it.  In  one  case  the  treatment  aggravated 
the  wound,  but  the  wound  thus  aggravated  produced  death.  In  the 
other  the  wound,  through  the  occasion  of  the  treatment,  did  not  con- 
tribute to  the  death,  which  occurred  without  any  present  contribution 
to  the  natural  efl'ect  of  the  medicine  from  the  wound.  Take,  for  in- 
stance, the  giving  of  a  dose  of  morphine,  by  mistake,  sufficient  to  end 
life  at  once.  In  such  case  it  is  as  obvious  that  the  treatment  produced 
death  as  it  would  have  been  had  the  phj'sician  cut  off  his  patient's  head. 
But  see  People  v.  Cook,  39  Mich.  236  ;  33  Am.  Rep.  380.  In  this  case 
it  appears  that  defendant  has  inflicted  a  dangerous  wound,  but  it  was 
contended  bv  the  defence  that  death  was  caused  by  an  overdose  of 
morphine.  Defendant  asked  an  instruction  as  follows:  "If  the  jury 
believe  that  the  injury  inflicted  by  the  prisoner  would  have  been  fatal, 
but  if  death  was  actually  produced  by  morphine  poisoning,  they  must 
acquit."  The  instruction  was  refused,  but  the  jur\-  were  told  that  if  the 
wound  was  not  in  itself  mortal,  and  death  was  caused  solely  by  the 
morphine,  they  must  acquit.  The  action  of  the  trial  court  was  sus- 
tained, on  the  ground  that  a  mortal  wound  had  been  given  which  neces- 
sitated medical  treatment ;  that  the  plnsicians  were  competent  and 
acted  in  good  faith.;  and  that  it  was  not  made  clearlj'  to  appear  that 
the  morphine  solel}'  produced  death,  and  that  the  wound  did  not  at 
all  contribute  to  the  death  at  that  time.  Under  the  authorities  this 
was  equivalent  to  a  finding  that  the  wound  did  not  contribute  to  tlie 
death. 
f  This  case  diflTers  from  that  in  this,  that  here  the  intervening  cause, 

I         which  it  is  alleged  hastened  death,  was  not  medical  treatment,  designed 
to  be  helpful,  and  which  the  deceased  was  compelled  to  procure  because 
of  the  wound,  but  was  an  act  intended  to  produce  death,  and  did  not 
I  result  from  the  first  wound  in  the  natural  course  of  events.     But  we 

I  have  reached  tlie  conclusion  by  a  course  of  argument  unnecessarilj' 

i  prolix,  except  from  a  desire  to  consider  fully  the  earnest  and  able  ar- 


SECT,  v.]  EEGINA   V.    HALLIDAY.  279 

gument  of  the  defendant,  that  the  test  is — or  at  least  one  test  — 
whether,  when  the  death  occurred,  the  wound  inflicted  by  the  defend- 
ant did  contribute  to  the  event.  If  it  did,  althougii  other  independent 
causes  also  contributed,  the  causal  relation  between  the  unlawful  acts 
of  the  defendant  and  the  death  has  been  made  out.  Here,  when  the 
throat  was  cut,  Farrell  was  not  merely  languishing  from  a  mortal 
wound.  He  was  actually  dying, — and  after  the  throat  was  cut  he 
continued  to  languish  from  both  wounds.  Drop  by  drop  the  life  cur- 
rent went  out  from  both  wounds,  and  at  the  very  instant  of  death  the 
gunshot  wound  was  contributing  to  the  event.  If  the  throat  cutting 
had  been  by  a  third  person,  unconnected  with  the  defendant,  he  might 
be  guilty  ;  for,  although  a  man  cannot  be  killed  twice,  two  persons, 
acting  independentl}',  may  contribute  to  his  death,  and  each  be  guilty 
of  a  homicide.  A  person  dying  is  still  in  life,  and  may  be  killed  ;  but 
if  he  is  dying  from  a  wound  given  by  another,  both  may  properly  be 
said  to  have  contributed  to  his  death. 


SECTION   V. 

Interposition  of  an  Act  of  a  Third  Pai-ty. 

REGINA  V.   HALLIDAY. 

Crown  Case  Reserved.     1889. 

[Reported  61  Law  Times  Reports,  701.] 

Case  stated  for  the  opinion  of  the  Court  for  the  Consideration  of 
Crown  Cases  Reserved  by  the  Chairman  of  the  Court  of  Quarter  Ses- 
sions of  the  Countv  Palatine  of  Durham  :  — 

At  the  Michaelmas  Quarter  Sessions  1889  of  the  county  of  Durham, 
the  prisoner  James  Hallida}'  was  tried  before  me  on  an  indictment 
charging  him  with  having  on  the  19th  June  1889  wilfully  and  maliciousl}' 
inflicted  grievous  bodily  harm  on  Mary  Jane  Hallida}-,  and  (in  a  second 
■count)  with  having  assaulted  her,  thereb}'  occasioning  her  actual  bodily 
harm. 

It  was  proved  that  Mary  Ann  [Jane?]  Hallida}-  was  prisoner's  wife, 
that  he  had  been  frequently  drunk  during  the  twelve  months  preceding 
the  day  on  which  the  offence  was  committed,  that  while  drunk  his  lan- 
guage was  very  violent  and  abusive,  that  he  had  threatened  her  fre- 
quentl}-,  and  that  in  consequence  of  his  threats  she  had  had  to  leave 
home  and  go  to  a  neighbor's  house  about  a  week  before  the  last- 
mentioned  da}',  but  he  had  never  actually  used  violence  towards  her. 
On  the  day  in  question,  in  consequence  of  a  request  made  to  her  by 
Margaret  Ann  Halliday  (the  daughter  of  prosecutrix  and  prisoner),  the 
prosecutrix  went  home  and  found  prisoner  very  drunk ;  the  son  of  the 
prisoner  and  prosecutrix  was  also  there,  and  whilst  he  remained  prisoner 
was  quiet,  but  the  son  left  the  house  after  a  short  interval  and  then 
prisoner  fastened  the  door  and  windows  and  said  to  prosecutrix,  "  Now, 
you  b ,  I  '11  talk  to  vou  ;  "  also  calling  her  bad  names  and  ordering 


280  REGINA   V.    HALLIDAY.  [CHAP.  III. 

her  and  the  daughter  off  to  bed.  Prosecutrix  was  in  an  inner  room, 
and  prisoner  shortly  afterwards  called  out  to  her,  asking  if  she  was  in 
bed.  Prosecutrix  said  she  was  not,  whereupon  prisoner  exclaimed, 
''  I'll  make  you  so  that  you  can't  go  to  bed,"  and  whilst  staggering 
towards  the  inner  room  he  knocked  himself  against  a  closet  in  the 
outer  room.  Prosecutrix  was  afraid  he  would  blame  her  for  that,  and 
ran  to  the  window,  took  the  hasp  off  it  and  opened  it  in  order  to  get 
out.  and  had  got  one  leg  out  when  their  daughter  caught  hold  of  her 
and  held  her.  Prisoner  b}-  this  time  had  got  into  the  room  where  pros- 
ecutrix was,  and  was  within  reach  of  her,  and  was  calling  out  "  Let 

the  b go,"  whereupon  the  daughter  left  hold  and  prosecutrix  fell 

into  the  street  and  broke  her  leg.  Both  mother  and  daughter  were 
very  frightened.  Whilst  prosecutrix  was  lying  on  the  flags  beneath, 
prisoner  jeered  at  her  from  the  window,  saying  it  served  her  right,  and 
he  made  no  attempt  to  help  her. 

On  these  facts  I  directed  the  jur}^  that,  if  the  prosecutrix's  apprehen- 
sion was  well  grounded,  taking  into  account  the  circumstances  in  which 
she  was  placed,  and  if  getting  out  of  the  window  was  an  act  such  as 
under  the  circumstances  a  woman  might  reasonably  be  led  to  take,  they 
should  find  the  prisoner  guilty.  The  jury  returned  a  general  verdict  of 
guilt}-  on  the  whole  indictment,  and  I  sentenced  him  to  six  months 
imprisonment  with  hard  labor.  Defendant  is  in  her  Majesty's  prison 
at  Durham  undergoing  the  sentence. 

The  question  for  the  court  is,  whether  or  not  the  prisoner  was  rightly 
convicted. 

No  one  appeared  on  behalf  of  the  prisoner. 

J.  L.  Walton  (with  him  Simey),  on  behalf  of  the  prosecution,  sub- 
mitted that  the  term  "inflict"  is  convertible  with  the  term  "cause  to 
feel,"  and  means  in  sect.  20  of  24  &  25  Vict.  c.  TOO,  to  be  responsible 
for  acts  that  cause  harm  to  any  person.  That  construction  had  been 
placed  upon  the  word  in  sect.  18  of  the  Act,  and  a  charge  of  felony 
sustained  upon  points  very  similar  to  those  in  the  present  case  ;  and  it 
had  been  held  that  the  words  "  cause"  and  "  inflict"  were  convertible 
terms.  There  was  a  distinction  between  this  case  and  Reg.  v.  Martin 
(8  Q.  B.  Div.  54:  14  Cox  C.  C.  633).  For  there  tbe  persons  were 
injured  by  the  physical  act  of  the  prisoner,  and  without  an}-  act  of  their 
own,  while  here  the  jump  from  the  window  was  the  voluntary'  act  of  the 
woman.  But  a  man  did  not  the  less  cause  a  thing  because  he  inflicted 
it ;  and  it  was  clear  that,  if  the  woman  had  died,  the  prisoner  could 
have  been  convicted  of  manslaughter,  if  not  of  murder.  There  were  a 
series  of  authorities,  commencing  with  Rex  v.  Evans  (1  Russ.  on 
Crimes,  4th  ed.  p.  656),  as  to  the  responsibility  of  a  person  who  causes 
another  person  to  take  upon  himself  conduct  which  causes  injury.  In 
that  case.  Heath,  Gibbs,  and  Bayley,  JJ.,  were  of  opinion  that,  if  a 
woman's  death  had  been  occasioned  partly  by  her  husband's  blows  and 
parth-  b}-  falling  from  a  window  out  of  which  she  threw  herself,  yet,  if 
she  was  constrained  b}'  her  husband's  threats  of  further  violence,  and 


SECT.  Y.]  REGINA   V.    HALLIDAY.  281 

from  a  well-grounded  apprehension  of  his  doing  such  further  violence 
as  would  endanger  her  life,  he  was  answerable  for  the  consequences  of 
the  fall  as  much  as  if  he  had  thrown  her  out  of  the  window  himself. 
In  Rex  V.  Hickman  (5  C.  &  P.  151)  a  prisoner  was  held  guilty  of  mur- 
der who  had  charged  another  person  on  horseback  and  so  friglitened 
him  that  he  spurred  his  horse,  and  in  consequence  the  horse  fell  and 
the  man  was  killed.  In  Reg.  v.  Pitts  (C.  &  Mars.  284),  the  prisoner 
was  charged  with  the  murder  of  a  man  whose  body  was  found  in  a 
canal,  there  being  signs  of  violence  and  a  struggle  on  the  banks  of  the 
canal,  andErskine,  J.,  told  the  jury  that  a  man  might  throw  himself  into 
a  river  under  such  circumstances  as  rendered  it  not  a  voluntar}-  act,  by 
reason  of  force  either  applied  to  the  body  or  the  mind.  It  was  there- 
fore immaterial  whether  the  physical  act  of  the  prisoner  operates  on  the 
body  or  mind,  if  injury  is  caused  ;  and  here  there  was  ample  evidence 
that  the  woman  got  out  of  the  window  in  consequence  of  her  husband's 
threats  operating  upon  her  mind  so  as  to  cause  her  to  fear  immediate 
danger. 

Lord  Coleridge,  C.  J.  I  am  of  opinion  that  the  conviction  in 
this  case  is  correct,  and  that  the  sentence  should  be  affirmed.  The 
principle  seems  to  me  to  be  laid  down  quite  fully  in  Reg.  v.  Martin 
(8  Q.  B.  Div.  54  ;  14  Cox  C.  C.  633).  There  this  court  held  that  a 
man  who  had  either  taken  advantage  of  or  had  created  a  panic  in  a 
theatre,  and  had  obstructed  a  passage,  and  rendered  it  difficult  to  get 
out  of  the  theatre,  in  consequence  of  which  a  number  of  people  were 
crushed,  was  answerable  for  the  consequences  of  what  he  had  done. 
Here  the  woman  came  by  her  mischief  by  getting  out  of  the  window  — 
I  use  a  vague  word  on  purpose  —  and  in  her  fall  broke  her  leg.  Now 
that  might  have  been  caused  by  an  act  which  was  done  accidentall}'  or 
deliberately,  in  which  case  the  prisoner  would  not  have  been  guilty.  It 
appears  from  the  case,  however,  that  the  prisoner  had  threatened  his 
wife  more  than  once,  and  that  on  this  occasion  he  came  home  drunk, 
and  used  words  which  amounted  to  a  threat  against  her  life,  saying 
"  I  '11  make  you  so  that  you  can't  go  to  bed  ;  "  that  she,  rushing  to  the 
window,  got  half  out  of  the  window,  when  she  was  restrained  by  her 
daughter.  The  prisoner  threatened  the  daughter,  who  let  go,  and  her 
mother  fell.  It  is  suggested  to  me  by  my  learned  brother  that,  sup- 
posing the  prisoner  had  struck  his  daughter's  arm  without  hurting  her, 
but  sufflcientl}'  to  cause  her  to  let  go,  and  she  had  let  her  mother  fall 
could  any  one  doubt  but  that  that  would  be  the  same  thing  as  if  he  had 
pushed  her  out  himself  ?  If  a  man  creates  in  another  man's  mind  an 
immediate  sense  of  danger  which  causes  such  person  to  try  to  escape, 
and  in  so  doing  he  injures  himself,  the  person  who  creates  such  a  state 
of  mind  is  responsible  for  the  injuries  which  result.  I  think  that  in 
this  case  there  was  abundant  evidence  that  there  was  a  sense  of  imme- 
diate danger  in  the  mind  of  the  woman  caused  by  the  acts  of  the  pris- 
oner, and  that  her  injuries  resulted  from  what  such  sense  of  danger 
caused  her  to  do.  I  am  therefore  of  opinion  that  the  prisoner  was 
rightly  convicted,  and  that  this  conviction  must  be  affirmed. 


282 


GUILLE    V.    SWAN. 


[chap.  III. 


Mathew,  J.  I  am  of  the  same  opinion.  The  jury  must  be  taken 
to  have  inferred  that  the  act  of  escaping  from  the  window  and  the  act 
of  the  daughter  were  tlie  consequences  of  the  prisoner's  acts  ;  and  I  am 
of  opinion  that  he  is  liable  for  the  consequences  of  such  acts. 

Cave,  Day,  and  Smith,  JJ.,  concurred.^ 

Conviction  affirmed. 


CUA 


"A 


\J<XtiA 


yj     '  GUILLE  V.   SWAN.         \ 

Supreme  Court,  New  York,  1822. 

[Reported  19  Johns.  381.] 

In  error,  on  certiorari  to  the  Justices'  Court  in  the  City  of  New 
York.  Swan  sued  Guille  in  the  Justice's  Court,  in  an  action  of  tres- 
pass, for  entering  his  close,  and  treading  down  his  roots  and  vege- 
tables, &c.,  in  a  garden  in  the  City  of  New  York.  The  facts  were,  that 
Guille  ascended  in  a  balloon  in  the  vicinity  of  Swan's  garden,  and 
descended  into  his  garden.  When  he  descended,  his  body  was  hanging 
out  of  the  car  of  the  balloon  in  a  very  perilous  situation,  and  he  called 
to  a  person  at  work  in  Swan's  field  to  help  him,  in  a  voice  audible  to 
the  pursuing  crowd.  After  the  balloon  descended,  it  dragged  along 
over  potatoes  and  radishes,  about  thirty  feet,  when  Guille  was  taken 
out.  The  balloon  was  carried  to  a  barn  at  the  farther  end  of  the 
premises.  When  the  balloon  descended,  more  than  two  hundred  per- 
sons broke  into  Swan's  garden  through  the  fences,  and  came  on  his 
premises,  beating  down  his  vegetables  and  flowers.  The  damage 
done  by  Guille,  with  his  balloon,  was  about  fifteen  dollars,  but  the 
crowd  did  much  more.  The  plaintiff's  damages,  in  all,  amounted  to 
S90.  It  was  contended  before  the  justice,  that  Guille  was  answer- 
able only  for  the  damage  done  by  himself,  and  not  for  the  damage  done 
by  the  crowd.  The  justice  was  of  the  opinion,  and  so  instructed  the 
jury,  that  the  defendant  was  answerable  for  all  the  damages  done  to 
the  plaintiff.  The  jury,  accordingly,  found  a  verdict  for  him,  for  S90, 
on  which  the  judgment  was  given,  and  for  costs. 

The  cause  was  submitted  to  the  court  on  the  return,  with  the  briefs 
of  the  counsel,  stating  the  points  and  authorities. 

Spencer,  C.  J.^  .  .  .  I  will  not  say  that  ascending  in  a  balloon  is 


^  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT,  v.]  FAIRBANKS   V.   KERR.  283 

an  unlawful  act,  for  it  is  not  so;  but  it  is  certain  that  the  aeronaut 
has  no  control  over  its  motion  horizontally;  he  is  at  the  sport  of  the 
winds,  and  is  to  descend  when  and  how  he  can;  his  reaching  the  earth 
is  a  matter  of  hazard.    He  did  descend  on  the  premises  of  the  plaintiff 

below,  at  a  short  distance  from  the  place  where  he  ascended.    Now,  if 1 

his  descent,  under  such  circumstances,  would,  ordinarily  and  naturally,  \ 
draw  a  crowd  of  people  about  him,  either  from  curiosity,  or  for  the 
purpose  of  rescuing  him  from  a  perilous  situation;  all  this  he  ought  to 
have  foreseen,  and  must  be  responsible  for.  \Miether  the  crowd  heard 
him  call  for  help  or  not,  is  immaterial;  he  had  put  himself  in  a  situa- 
tion to  invite  help,  and  they  rushed  forward,  impelled,  perhaps,  by 
the  double  motive  of  rendering  aid  and  gratif;ying  a  curiosity  which 
he  had  excited.  Can  it  be  doubted,  that  if  the  plaintiff  in  error  had  | 
beckoned  to  the  crowd  to  come  to  his  assistance,  that  he  would  be 
liable  for  their  trespass  in  entering  the  inclosure?  I  think  not.  In 
that  case,  they  would  have  been  co-tresspassers,  and  we  must  consider 
the  situation  in  which  he  placed  himself,  voluntarily  and  designedly, 
as  equivalent  to  a  direct  request  to  the  crowd  to  follow  him.  In  the 
present  case,  he  did  call  for  help,  and  may  have  been  heard  by  the 
crowd;  he  is,  therefore,  undoubtedly,  liable  for  all  the  injury  sustained. 

Judgment  affirmed. 


\?.. 


FAIRBANKS  v.  KERR. 

Supreme  Court  of  Pennsylvania,  1871. 

[Reported  70  Pa.  87.] 

Agnew,  J.  Kerr  &  Smith,  the  plaintiffs  below,  were  contractors 
for  laying  a  pavement  of  flagstones.  They  laid  up  several  piles  of 
stones  in  the  street  along  the  curbstone,  ready  to  begin  work.  The 
defendant  Fairbanks  got  upon  one  of  these  piles,  and  began  to  make  a 
political  speech.  A  crowd  gathered  around,  and  some  of  the  bystand- 
ers mounted  another  one  of  the  piles,  and  by  their  weight  caused 
several  of  the  stones  to  crack  and  break.  Kerr  &  Smith  sued  Fair- 
banks for  this  injury.  There  was  no  evidence  that  Fairbanks  requested, 
or  in  anywise  induced  these  bystanders  to  stand  upon  the  pile,  ex- 


284 


FAIRBANKS   V.   KERK. 


[chap.  hi. 


cepting  so  far  as  his  speech  drew  them  together,  and  they  mounted  the 
pile  to  hear  and  see  more  conveniently.  The  court  below  held  that  if 
the  persons,  whose  combined  weiglit  broke  down  the  stones,  were 
collected  together  by  the  act  of  the  defendant  in  making  the  speech  in 
the  street,  he  would  be  responsible  in  an  action  on  the  case  for  the  con- 
sequential damages.  This  instruction  was  not  qualified.  The  court 
told  the  jury  that  a  proximate  cause  is  one  which  is  a  first  and  direct 
power  producing  the  result,  and  a  remote  cause  is  one  removed  from 
the  direct,  and  may  be  called  the  secondary  cause;  but  said  nothing 
upon  the  character  of  the  act  which  caused  the  injury,  and  gave  no 
instruction  to  ascertain  whether  this  act  was  a  natural  or  probable 
consequence  of  making  the  speech  in  the  street,  or  one  which  might 
have  been  readily  foreseen  by  the  defendant.  In  effect,  such  an  yn- 
qualified  instruction  would  e.vpose  the  defendant  to  all  the  consequences 
of  his  street  speech  —  the  accidental  and  even  the  walful  acts  of  the 
bystanders  gathered  there  by  it,  as  well  as  the  natural  and  probable 
consequences  which  he  might  have  foreseen.  Thus,  if  one  of  the  crowd 
should  by  accident  thrust  his  elbow  through  a  window-pane,  or  in- 
advertently tread  upon  and  break  an  article  of  show  beside  a  door,  or 
even  if  one  had  his  pocket  picked,  the  unfortunate  speaker  would  be 
held  liable  for  all  these  consequences  of  his  speech.  The  court,  there- 
fore, really  decided  as  a  question  of  law  a  matter  of  fact  properly  belong- 
ing to  the  jury,  to  wit,  that  the  mounting  of  the  pile  of  stones  by  the 
bystanders  was  the  natural  and  probable  consequence  of  the  speech 
in  the  street,  which  the  defendant  ought  to  have,  or  might  have, 
foreseen.  This  was  an  error:  the  question  was  a  fact  dependent  on 
all  the  circumstances.  For  example,  had  the  second  pile  been  two 
hundred  feet  or  a  square  away  from  the  speaker,  no  one  could  say  that 
by  any  fair  reasoning  he  might  have  expected  such  an  accident  to 
happen. 

The  maxim  causa  proxima  non  remota  spedatur  governs  cases  of 
this  kind,  and  yet  its  application  is  not  always  easy.  Many  cases  illus- 
trate, but  none  define,  what  is  an  immediate  or  what  is  a  remote  cause. 
Indeed,  such  a  cause  seems  to  be  incapable  of  any  strict  definition  which 
will  suit  in  every  case.  It  was  said  in  Morrison  v.  Davis  &  Co.,  8  Harris, 
171,  the  general  rule  is,  that  a  man  is  answ^erable  for  the  consequences 
of  a  fault  only  so  far  as  the  same  are  natural  and  proximate,  and  as 
may,  on  this  account,  be  foreseen  by  ordinary  forecast,  and  not  for 
those  which  arise  from  a  conjunction  of  his  fault  with  other  circum- 
stances that  are  of  an  extraordinary  nature.  Of  the  first  branch  of 
this  proposition,  Scott  v.  Hunter,  10  Wright,  192,  is  an  illustration. 
There  a  defendant  who  unnecessarily  occupied  the  passageway  to  the 
locks  of  one  of  the  dams  of  the  Monongahela  slackwater,  from 
the  afternoon  of  one  day  till  the  afternoon  of  the  following  day,  hold- 
ing the  boats  of  the  plaintiff  into  the  stream,  while  it  was  rising  rapidly, 
until  the  flood  carried  them  over  the  dam,  was  held  to  be  liable  for  the 


SECT,    v.]  FAIRBANKS    V.    KERR.  285 

injury.  The  court  below  thought  the  flood  was  the  proximate  cause 
of  the  injury,  and  the  occupancy  of  the  access  to  the  locks  by  the 
defendant  was  too  remote;  but  this  court  reversed  the  judgment. 
The  question  whether  the  defendant  ought  not  to  have  apprehended 
the  danger  to  the  plaintiff's  boats  when  the  stream  was  rising  rapidly 
was  not  submitted  to  the  jury,  and  hence,  said  Mr.  Justice  Strong,  here, 
we  think,  the  court  erred  in  assuming  to  decide  as  a  matter  of  law  that 
the  wreck  of  the  boats  was  not  the  natural  consequence  of  the  wrong- 
ful act  of  the  defendant  in  blocking  up  the  locks  and  channel  of  the 
river,  and  holding  the  boats  of  the  plaintiff  so  long  exposed  to  the  force 
of  the  current.  It  was  a  natural  consequence,  he  says,  if  it  should 
have  been  foreseen,  or  if  it  would  have  been  guarded  against  by  men 
of  ordinary  prudence,  using  their  own  rights  with  proper  regard  to 
.those  of  others.  On  the  other  hand,  Morrison  v.  Davis  &  Co.,  supra, 
is  an  illutration  of  the  second  branch  of  the  proposition.  There  the 
accident  happened  in  consequence  of  the  boat  being  overtaken  and  sunk 
by  an  extraordinary  flood  at  Piper's  dam,  on  the  Juniata,  but  which 
the  boat  would  have  passed  safely  had  it  not  been  delayed  by  the 
defendants  using  a  lame  horse.  This  court  held  that  the  proximate 
cause  destroying  the  boat  and  cargo  was  the  flood,  and  that  the  use 
of  the  lame  horse  which  led  to  the  unforeseen  conjunction  of  the  hap- 
pening of  the  flood  and  of  the  boats  being  at  the  dam  at  the  same 
time,  was  too  remote  a  cause  to  create  a  liability  for  the  loss  of  the 
plaintiff's  goods.  Doubtless  the  delay  produced  by  using  the  lame 
horse  was  a  cause  of  the  accident,  but  it  was  not  a  probable  cause,  for 
it  could  not  be  foreseen  that  it  would  unite  with  the  flood  at  a  place 
of  danger  to  produce  it.  In  McGrew  v.  Stone,  3  P.  F.  Smith,  441,  it 
was  said  by  myself,  as  the  result  of  the  cases,  that  the  maxim  causa 
proxima  non  rcmota  spcctatur  means  but  this:  We  are  not  to  link 
together,  as  cause  and  effect,  events  having  no  probable  connection 
in  the  mind,  and  which  could  not,  by  prudent  circumspection  and  or- 
dinary thoughtfulness,  be  foreseen  as  likely  to  happen  in  consequence 
of  the  act  in  which  we  are  engaged.  It  may  be  true  that  the  injury 
would  not  have  occurred  without  the  concurrence  of  our  act  with  the 
event  which  immediately  caused  the  injury;  but  we  are  not  justly 
called  to  suffer  for  it,  unless  the  other  event  was  the  effect  of  our  act, 
or  was  within  the  probable  range  of  ordinary  circumspection  when 
engaged  in  the  act.  But  when  we  are  engaged  in  an  act  which  the  sur- 
rounding circumstances  indicate  may  be  dangerous  to  others  or  their 
interests,  and  when  the  event  whose  concurrence  is  necessary  to  make 
our  act  injurious,  is  one  we  can  readily  see  may  occur  under  the 
circumstances,  and  unite  with  the  act  to  inflict  an  injury,  we  are  cul- 
pable if  we  do  not  take  all  the  care  which  prudent  circumspection  would 
suggest  to  avoid  the  injury. 

This  subject  of  near  and  remote  consequences  has   been   largely 
discussed  by  the  present  Chief  Justice  in  the  recent  case  of  Pennsyl- 


286  FAIRBANKS  V.    KERR.  [CHAP.  III.. 

vania  Railroad  Co.  v.  Kerr,  12  P.  F.  Smith,  353.  It  is  certain,  he  says, 
that  in  almost  every  considerable  disaster,  the  result  of  human  agency 
and  dereliction  of  duty,  a  train  of  consequences  generally  ensues,  and 
so  ramifies  as  more  or  less  to  affect  the  whole  community.  Indemnity 
cannot  reach  all  these  results,  although  parties  suffer  who  are  inno- 
cent of  blame.  In  that  case  the  railroad  company  was  held  not  to  be 
responsible  for  the  ulterior  consequences  to  other  houses  caused  by 
the  negligent  burning  of  a  warehouse  on  the  line  of  their  road  from  the 
sparks  of  one  of  their  engines.  In  Fleming  v.  Beck,  12  Wright,  313, 
remarks  pertinent  to  this  subject  may  be  found.  Among  other  things 
it  was  there  said,  that  in  strict  logic  it  may  be  said  that  he  who  is  the 
cause  of  loss  should  be  answerable  for  all  losses  which  flow  from  his 
causation.  But  in  the  practical  workings  of  society  the  law  finds  in 
this,  as  in  a  variety  of  other  matters,  that  the  rule  of  logic  is  imprac- 
ticable and  unjust.  It  is  impossible  to  compensate  for  all  losses,  and 
the  law,  therefore,  aims  at  a  just  discrimination  which  will  impose  upon 
the  party  causing  them  the  proportion  that  a  proper  view  of  his  acts 
and  the  attending  circumstances  would  dictate. 

In  \aew  of  these  principles  it  would  be  difficult  to  decide,  as  a  legal 
conclusion,  that  the  defendant  is  liable  for  the  breaking  of  the  stones 
in  question  by  the  bystanders.  It  cannot  be  said  with  judicial  cer- 
tainty, that  when  he  stopped  to  make  his  speech  in  the  street  he  must 
have  foreseen,  as  the  natural  and  probable  consequence  of  his  act,  the 
persons  collecting  together  to  listen  to  him  would  mount  the  pile  of 
stones,  and  even  if  some  of  them  would,  that  so  many  would  as  by 
their  collected  weight  might  break  some  of  the  stones.  The-lowermost 
stones  in  the  pile  were  already  trusted  by  the  plaintiff  with  the  weight 
of  the  uppermost.  Height  of  pile,  strength  of  grain,  distance  from 
the  speaker,  number  of  bystanders,  and  perhaps  other  circumstances, — 
all  would  enter  into  the  question  of  the  probability  of  injury.  The  ques- 
tion was,  therefore,  one  of  fact  for  the  jury,  and  not  of  law  for  the 
court. 

Much  stress  was  laid  in  the  argument  on  the  fact  that  the  defendant 
was  guilty  of  a  nuisance,  by  collecting  a  crowd,  and  the  case  of  Barker 
V.  The  Commonwealth,  7  Harris,  412,  is  relied  on.  But,  conceding 
that  the  defendant  might  have  been  indicted  for  a  nuisance,  it  adds 
nothing  to  the  civil  injury  complained  of  here.  The  question  would 
still  remain,  whether  the  defendant's  making  his  speech  in  the  street 
was  the  probable  and  proximate  cause  of  the  injury.  The  nuisance 
and  the  civil  injury  are  different  things.  It  was  not  because  the  crowd 
obstructed  the  highway,  and  was  therefore  a  nuisance,  that  the  plain- 
tiffs' stones  were  broken;  but  because  some  of  the  crowd  mounted  the 
pile  of  stones.  But  it  cannot  be  conceded,  in  the  broad  sense  in  which 
it  was  contended,  that  making  a  speech  in  the  street  is  ipso  facto  and 
per  se  a  public  nuisance.  The  indictment  against  Barker  was  for  ob- 
structing the  streets  of  Pittsburg,  through  crowds  collected  by  means 


SECT,    v.] 


BEATTY    V.    GILLBANKS. 


287 


of  violent,  loud,  and  indecent  language  addressed  to  those  passing 
by;  and  by  this  means  collecting  assemblages  of  men,  boys,  and  idle, 
dissolute,  and  disorderly  persons.  A  street  may  not  be  used,  in  strict- 
ness of  law,  for  public  speaking,  even  preaching  or  public  worship, 
or  a  pavement  before  another's  house  may  not  be  occupied  to  annoy 
him;  but  it  does  not  follow  that  everyone  who  speaks  or  preaches  in 
the  street,  or  who  happens  to  collect  a  crowd  therein  by  other  means, 
is  therefore  guilty  of  the  indictable  offense  of  nuisance.  His  act  may 
become  a  nuisance  by  his  obstruction  of  the  public  highway,  but  it 
will  not  do  to  say  it  is  a  nuisance  per  sc.  Such  a  stringent  interpreta- 
tion of  the  case  of  Barker  is  scarcely  suited  to  the  genius  of  our  people 
or  to  the  character  of  their  institutions,  and  would  lead  to  the  repres- 
sion of  many  usages  of  the  people  now  tolerated  as  harmless,  if  not 
necessary.  Those  who  draw  crowds  together  in  the  street  by  window 
displays,  music,  parades,  and  the  like,  might  be  made  answerable  for 
many  misfortunes  if  the  doctrine  of  nuisance  be  so  extensive  in  its 
consequences. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 


n 


li 


<K 


BEATTY    0.   GILLBANKS. 

Queen's  Bench  Division'.     1882. 

{Reported  15  Cox  C.  C.  138.] 

Field,  J.^    I  am  of  opinion  that  this  order  cannot  be  supported,  and 

must  therefore  be  discharged.     The  appellants,  it  appears,  together 

with  a  large  number  of  other  people,  belong  to  a  body  of  persons  called 

the  Salvation  Army,  who  are  associated  together  for  a  purpose  which 

cannot  be  said  to  be  otherwise  than  lawful  and  laudable,  or  at  all  events 

cannot  be  called  unlawful,  their  object  and  intention  being  to  induce  a 

class  of  persons  who  have  little  or  no  knowledge  of  religion  and  no  taste 

or  disposition  for  religious  exercises  or  for  going  to  places  of  worship, 

to  join  them  in  their  processions,  and  so  to  get  them  togetlier  to  attend 

and  take  part  in  their  religious  exercises,  in  the  hope  that  they  may  be 

reclaimed  and  drawn  away  from  vicious  and  irreligious  habits  and 

courses  of  life,  and  that  a  kind  of  revival  in  the  matter  of  religion 

1  The  opinion  of   Field,  J.,  only  is  j)rinte(l.     Cave,  J.,  delivered  a  concurring 
opinion. 


V 


288 


BEATTY   V.   GILLBANKS. 


[chap.  III. 


\ 


may  be  brought  about  amongst  those  who  were  previously  dead  to  any 
such  influences.  That  undoubtedly  is  the  object  of  the  Salvation  Army 
and  of  the  appellants,  and  no  other  object  or  intention  has  been  or 
can  be  imputed  to  them  ;  and,  as  has  been  said  by  their  learned  coun- 
sel, and  doubtless  with  perfect  truth,  so  far  are  they  from  desiring  to 
carr}'  out  that  object  by  means  of  any  force  or  violence,  their  principles 
are  directly  and  entirely  opposed  to  -any  conduct  of  that  kind,  or  to  the 
exercise  or  employment  of  anything  like  physical  force  ;  and,  indeed, 
it  appears  that  on  the  occasion  in  question  they  used  no  personal  force 
or  violence,  but,  on  the  contrary,  when  arrested  by  the  police,  they 
submitted  quietly  without  the  exhibition  of  any  resistance  either  on 
their  own  parts  or  on  that  of  any  other  member  of  their  body.  Such 
being  their  lawful  object  and  intention,  and  having  no  desire  or  inten- 
tion of  using  force  or  violence  of  any  kind,  it  appeared  that  on  this 
26th  day  of  March  they  assembled,  as  they  had  previously  done  on 
other  occasions,  in  considerable  numbers  at  their  hall,  and  proceeded 
to  march  thence  in  procession  through  the  streets  of  the  town  of  AVeston- 
super-Mare.  Now  that,  in  itself,  was  certainly  not  an  unlawful  thing 
to  do,  nor  can  such  an  assembly  be  said  to  be  an  unlawful  one.  Numer- 
ous instances  might  be  mentioned  of  large  bodies  of  persons  assembling 
in  much  larger  numbers,  and  marching,  accompanied  by  banners  and 
bands  of  music,  through  the  public  streets,  and  no  one  has  ever  doubted 
that  such  processions  were  perfectly  lawful.  Now  the  appellants  com- 
plain that,  for  having  so  assembled  as  I  liave  before  stated,  they  have 
been  adjudged  guilty  of  the  offence  of  holding  an  unlawful  assembly, 
and  have  in  consequence  been  ordered  to  find  sureties  to  keep  the  peace, 
in  the  absence  of  any  evidence  of  their  having  broken  it.  It  was  of 
course  necessary  that  the  justices  should  find  that  some  unlawful  act 

«.  had  been  committed  ].)y  the  appellants  in  order  to  justify  the  magis- 
trates in  binding  them  over.  The  offence  charged  against  them  is 
"  unlawfully  and  tumultuously  assembling  with  others  to  the  disturb- 
ance of  the  public  peace,  and  against  the  peace  of  the  Queen  ; "  and  of 
course,  before  they  can  be  convicted  upon  the  charge,  clear  proof  must 
be  adduced  that  the  specific  oft'ence  charged  has  been  committed.  Now, 
was  that  charge  sustained?  There  is  no  doubt  that  the  appellants 
did  assemble  together  with  other  persons  in  great  numbers,  but  that 
alone  is  insufficient.  The  assembly  must  be  a  "  tumultuous  assembly" 
and  "against  the  peace,"  in  order  to  render  it  an  unlawful  one.  But 
there  was  nothing,  so  far  as  the  appellants  were  concerned,  to  show  that 
their  conduct  was  in  the  least  degree  "tumultuous"  or  "  against  the 

/~peace."  All  that  the}-  did  was  to  assemble  together  to  walk  through 
the  town  ;  and  it  is  admitted  by  the  learned  counsel  for  the  respondent, 
that  as  regards  the  appellants  themselves,  there  was  no  disturbance  of 
the  peace,  and  that  their  conduct  was  quiet  and  peaceable.  But  then 
it  is  argued  that,  as  in  fact  their  line  of  conduct  was  the  same  as  had 
on  previous  similar  occasions  led  to  tumultuous  and  riotous  proceed- 
ings with  stone-throwing  and  fighting,  causing  a  disturbance  of  the 


SECT,    v.]  BEATTY   V.    GILLBANKS.  289 

public  peace  and  terror  to  the  inhabitants  of  the  town,  and  as  on  the 
present  occasion  like  results  would  in  all  probability  be  produced, 
therefore  the  appellants,  being  well  aware  of  the  likelihood  of  such    | 
results  again  occurring,  were  guilty  of  the  offence  charged  against 
them.     Now,  without  doubt,  as  a  general  rule  it  must  be  taken  that    , 
every  person  intends  what  are  the  natural  and  necessary  consequences     •'  "  ~       ~    '^  / ' 
of  his  own  acts  ;  and  if  in  the  present  case  it  had  been  their  intention, 
or  if  it  had  been  the  natural  and  necessary  consequence  of  their  acts, 
to  produce  the  disturl)auce  of  the  peace  which  occurred,  then  the  appel- 
lants would  have  been  responsible  for  it,  and  the  magistrates  would 
have  been  right  in  binding  them  over  to  keep  the  peace.    But  the  evi-  _^ 

dence  as  set  forth  in  the  case  shows  that,  so  far  from  that  being  the      ,    .     '-<--'' 
case,  the  acts  and  conduct  of  the  appellants  caused  nothing  of  the      j    J6jiJ-ul    U 
kind,  but  on  the  contrary,  that  the  disturbance  that  did  take  place  was       ■  .      jj^ 
caused  entirely  by  the  unlawful  and  unjustifiable  interference  of  the  •  ^     , 

Skeleton  Army,  a  body  of  persons  opposed  to  the  religious  views  of 
the  appellants  and  the  Salvation  Army,  and  that  but  for  the  opposition 
and  molestation  offered  to  the  Salvationists  by  these  other  persons,  no  ' 
disturbance  of  any  kind  would  have  taken  place.  The  appellants  were 
guilty  of  no  offence  in  their  passing  through  the  streets,  and  why  should 
other  persons  interfere  with  or  molest  them?  What  right  had  they  to  ^ 
do  so?  If  they  were  doing  anything  unlawful,  it  was  for  the  magis- 
trates and  police,  the  appointed  guardians  of  law  and  order,  to  inter- 
pose. The  law  relating  to  unlawful  assemblies,  as  laid  down  in  the 
books  and  the  cases,  affords  no  support  to  the  view  of  the  matter  for 
which  the  learned  counsel  for  the  respondent  was  obliged  to  contend, 
viz.,  that  persons  acting  lawfully  are  to  be  held  responsible  and  pun- 
ished merely  because  other  persons  are  thereby  induced  to  act  unlaw- 
fully and  create  a  disturbance.  In  1  Russell  on  Crimes  (4th  edit.  p.  . 
387),  an  unlawful  assembly  is  defined  as  follows  :  "An  unlawful  asseni-  )  /  .,  L, , ,  ■  ' 
bly,  according  to  the  common  opinion,  is  a  disturbance  of  the  peace 
by  persons  barely  assembling  together  with  the  intention  to  do  a  thing  (^^  , 
which,  if  it  were  executed,  would  make  them  rioters,  but  neither  actually  (%Ly! 
executing  it  nor  making  a  motion  towards  the  execution  of  it."  It  is 
clear  that,  according  to  this  definition  of  the  offence,  the  appellant* 
were  not  guilty  ;  for  it  is  not  pretended  that  they  had,  but,  on  the  con- 
trary, it  is  admitted  that  they  had  not,  any  intention  to  create  a  riot, 
or  to  commit  any  riotous  or  other  unlawful  act.  Many  examples  of 
what  are  unlawful  assemblies  are  given  in  Hawkins'  Pleas  of  the  Crown, 
book  1,  cap.  28,  ss.  9  and  10,  in  all  of  which  the  necessary  circum- 
stances of  terror  are  present  in  the  assembly  itself,  either  as  regards 
the  object  for  which  it  is  gathered  together,  or  in  the  manner  of  its 
assembling  and  proceeding  to  carry  out  that  object.  The  present  case, 
however,  differs  from  the  cases  there  stated ;  for  hero  the  only  terror 
that  existed  was  caused  by  the  unlawful  resistance  wilfully  and  design- 
edly offered  to  the  proceedings  of  the  Salvation  Army  by  an  unlawful 
organization  outside  and  distinct  from  them,  called  the  Skeleton  Army. 


.o^y 


290  WISE   V.   DUNNING.  [CHAP.  III. 

It  was  suggested  by  the  respondent's  counsel  that  if  these  Salvation 
processions  were  allowed,  similar  opposition  would  be  offered  to  them 
in  future,  and  that  similar  disturbances  would  ensue.  But  I  cannot 
believe  that  that  will  be  so.  1  hope,  and  I  cannot  but  think,  that  when 
the  Skeleton  Array,  and  all  other  persons  who  are  opposed  to  the  pro- 
ceedings of  the  Salvation  Army,  come  to  learn,  as  they  surely  will 
learn,  that  they  have  no  possible  right  to  interfere  with  or  in  any 
way  to  obstruct  the  Salvation  Army  in  their  lawful  and  peaceable  pro- 
cessions, they  will  abstain  from  opposing  or  disturbing  them.  It  is 
usual,  happily,  in  this  country  for  people  to  respect  and  obey  the  law 
when  once  declared  and  understood,  and  I  hope  and  have  no  doubt 
that  it  will  be  so  in  the  present  case.  But  if  it  should  not  be  so,  there 
is  DO  doubt  that  the  magistrates  and  police,  both  at  Weston-super- 
Mare  and  everywhere  else,  will  understand  their  duty  and  not  fail  to 
do  it  efficiently,  or  hesitate,  should  the  necessity  arise,  to  deal  with 
the  Skeleton  Army  and  other  disturbers  of  the  public  peace  as  they 
did  in  the  present  instance  with  the  appellants  ;  for  no  one  can  doubt 
that  the  authorities  are  only  anxious  to  do  their  duty  and  to  prevent  a 
disturbance  of  the  public  peace.  The  present  decision  of  the  justices, 
however,  amounts  to  this,  that  a  man  may  be  punished  for  acting  law- 
fully if  he  knows  that  his  so  doing  may  induce  another  man  to  act 
unlawfully,  —  a  proposition  without  any  authority  whatever  to  support 
it.  Under  these  circumstances,  the  questions  put  to  us  by  the  justices 
must  be  negatively  answered,  and  the  order  appealed  against  be  dis- 
charged. 


WISE    V.  DUNXING. 
-"x  High  Court  of  Justice,  King's  Bench  Division.     1902. 

'Y)^)  [Reported  1902,  1  A'.  B.  167.] 


Lord  Alverstone,  C.  J.  This  is  a  case  stated  by  way  of  appeal 
from  an  order  made  by  the  stipendiary  magistrate  of  Liverpool  bind- 
ing over  the  appellant  "to  be  of  good  behaviour."  The  recogniz- 
ance also  bound  him  over  "  to  keep  the  peace"  ;  but  the  actual  form 
of  it  is  not  material  because  it  contained  the  words  "to  be  of  good 
behaviour."  The  case  has  been  extremely  well  argued.  I  am  of 
opinion  that  the  magistrate  was  perfectly  justified  in  putting  the  ap- 
pellant under  recognizances.  It  is  not  necessary  to  go  at  great  length 
into  the  various  authorities  which  were  cited  to  us  ;  I  am  not  able  to 
find  in  those  authorities  any  statement  of  a  rule  of  law  which  is  to  be 
applied  in  all  such  cases  as  this.  The  difficulty  arises  from  attempts 
to  apply  the  law  to  particular  states  of  circumstances,  for  it  is  obvious 
that  diflTerent  people  may  express  different  opinions  as  to  what  ought  to 
have  been  the  application  of  the  law  under  particular  circumstances. 
For  instance,  our  attention  was  called  to  the  opinion  of  a  very  learned 


SECT,  v.]  WISE   V.   DUNNING.  291 

lawyer  and  writer,  Mr.  Dicey,  with  respect  to  Beatt}-  i\  Gillbanks,  9  Q. 

B.  D.  308,  and  bis  opinion,  as  I  understood  tlie  passage  when  read,  was 
that  the  view  tal^en  b}'  the  Irish  courts  is  in  conflict  with  that  taken  b}' 
Field,  J.,  and  Cave,  J.,  in  that  case.  But  I  think  that,  when  Beatty  v. 
Gillbanks,  supra,  is  closel}'  examined,  it  lays  down  no  law  inconsistent 
with  anything  stated  by  the  judges  in  the  Irish  cases.  For  this  purpose 
it  is  sufficient  to  cite  the  following  passages.  In  Beatty  v.  Gillbanks, 
supra.  Field,  J.,  said,  stating,  I  think,  the  law  with  absolute  accurac}' : 
"  Now  I  entirely*  concede  that  every  one  must  be  taken  to  intend  the 
natural  consequences  of  his  own  acts,  and  it  is  clear  to  me  that  if  this 
disturbance  of  the  peace  was  the  natural  consequence  of  acts  of  the 
appellants  they  would  be  liable,  and  the  justices  would  have  been  right 
in  binding  them  over.  But  the  evidence  set  forth  in  the  case  does  not 
support  this  contention."  O'Brien,  C.  J.,  in  Reg.  v.  Justices  of  London- 
derry, 28  L.  R.  Ir.  at  p.  447,  said  :  "  No  act  on  the  part  of  any  person 
was  proved  to  shew  that  it  was  reasonably'  probable  that  the  conduct  of 
the  defendants  would,  on  the  day  in  question,  have  provoked  a  breach 
of  the  peace."  It  is,  in  m}'  opinion,  important  to  emphasize  that  enun- 
ciation of  the  necessar}'  test,  because  it  has  been  pressed  upon  us  b^'  the 
appellant's  counsel  that  if  the  appellant  did  not  intend  to  act  unlawfully 
himself,  or  to  induce  other  persons  to  act  unlawfulh',  the  fact  that  his 
words  might  have  led  other  people  so  to  act  would  not  be  sufficient. 

In  Reg.  V.  Justices  of  Cork,  15  Cox,  C.  C.  78,  at  p.  84,  May,  C.  J., 
after  quoting  the  passage  from  Blackstone  which  was  read  to  us  during 
the  argument,  proceeded  :  "•  This  requisition  of  sureties  must  be  under- 
stood rather  as  a  caution  against  the  repetition  of  the  offence  than  any 
immediate  pain  or  punishment.  This  caution  is  such  as  is  intended 
merel}'  for  prevention  without  any  crime  actually  committed  b}-  the 
party,  but  arising  onl}'  from  a  probable  suspicion  that  some  crime 
is  intended  or  likely  to  happen,  and  consequently  it  is  not  meant  as 
an}'  degree  of  punishment,  unless  perhaps  for  a  man's  imprudence  in 
giving  just  ground  for  apprehension."  Again,  in  the  second  case  of 
Reg.  V.  Justices  of  Cork,  15  Cox,  C.  C.  149,  reported  in  the  same  vol- 
ume, Fitzgerald,  J.,  after  referring  to  the  authorities,  said,   15  Cox, 

C.  C.  at  p.  155:  ''Without  citing  further  authoritv  we  may  assume 
that  where  it  shall  be  made  reasonably  to  appear  to  a  justice  of  the 
peace  that  a  person  has  incited  others  b}'  acts  or  language  to  a  viola- 
tion of  law  and  of  right,  and  that  there  is  reasonable  ground  to  believe 
that  the  delinquent  is  likel}'  to  persevere  in  that  course,  such  justice 
has  authority  by  law,  in  the  execution  of  preventive  justice,  to  provide 
for  the  public  securit}'  by  requiring  the  individual  to  give  securities  for 
good  behaviour,  and  in  default  commit  him  to  prison."  I  have  referred 
to  those  cases,  not  for  the  purpose  of  endeavouring  to  deduce  from  them 
any  new  rule  of  law,  but  for  the  purpose  of  pointing  out  that,  in  a 
number  of  cases  and  before  different  judges,  what  I  may  call  tlie  essen- 
tial condition  has  been  stated,  substantially  in  the  same  way  though  in 
different  language,  that  there  must  be  an  act  of  the  defendant,   the 


292 


WISE   V.    DUNNING. 


[chap.  III. 


natural  consequence  of  which,  if  his  act  be  not  unlawful  in  itself,  would 
be  to  produce  an  unlawful  act  by  other  persons.  This  case  might  really 
be  put  higher,  but  1  have  so  far  dealt  with  the  raatter  assuming  the 
facts  in  favour  of  the  argument  of  the  counsel  for  the  appellant.  I 
think  that  the  local  Act,  to  which  we  were  referred,  has  a  very  impor- 
tant bearing  on  this  case.  It  provides  that  any  person  who  uses  any 
threatening,  or  abusive,  or  insulting  words  or  behaviour  with  intent  to 
provoke  a  breach  of  the  peace  (which  is  not  this  case),  or  whereb}'  a 
breach  of  the  peace  may  be  occasioned,  may  be  summoned  before  the 
local  magistrates  and  fined.  It  was  contended  for  the  appellant  that 
the  Act  was  only  intended  to  ])revent  persons  from  using  bad  lan- 
guage in  the  streets  of  Liverpool  with  impunit}'.  Though  that  may 
have  been  one  of  the  evils  which  the  Act  aimed  at,  I  do  not  think  that 
its  scope  was  so  limited.  Here  we  have  distinct  findings  of  facts  that 
the  appellant  held  a  number  of  meetings  in  the  public  streets  ;  that  the 
highways  were  blocked  by  crowds  numbering  thousands  of  persons  ; 
that  very  serious  contests  and  breaches  of  the  peace  had  arisen,  and  that 
the  appellant  himself  used,  with  respect  to  a  large  body  of  persons  of  a 
different  religion,  language  which  the  magistrate  has  found  to  De  of 
,  a  most  insulting  character,  and  that  the  appellant  challenged  an}-  one 
of  them  to  get  up  and  den}-  his  statements.  Magistrates  are  only 
doing  their  duty  when  they  have  regard  to  and  make  themselves 
acquainted  with  the  character  of  the  population  amongst  whom  they 
have  to  administer  justice  ;  and,  in  considering  the  natural  consequence 
of  a  man's  acts  who  has  used  insulting  language  in  the  public  streets 
towards  persons  of  a  particular  religion,  the  magistrates  are  bound  to 
take  into  consideration  the  fact  that  there  is  a  large  body  of  those  per- 
sons in  the  town.  The  appellant  also  was  proved  to  have  stated,  with 
respect  to  a  meeting  he  intended  to  hold,  that  he  had  received  a  letter 
informing  him  that  the  Catholics  were  going  to  bring  sticks,  and  he 
told  his  supporters  that  tlie  -police  had  refused  to  give  him  protection, 
and  he  said  that  he  looked  to  them  for  protection.  On  these  facts  I 
'.  tliink  no  one  could  reasonably  doubt  that  the  police  and  the  magistrate 
I  were  right  in  thinking  that  his  language  and  conduct  went  very  far 
I  indeed  towards  inciting  people  to  commit,  or  was,  at  any  rate,  lan- 
I  guage  and  behaviour  likely  to  occasion,  a  breach  of  the  peace.  It  may 
l—be  true  that,  if  this  case  were  to  be  considered  with  reference  only  to 
any  particular  one  of  the  threats  or  illegalities  which  it  is  suggested  the 
appellant  has  committed,  further  evidence  would  have  been  necessary ; 
but  in  my  opinion,  there  was  abundant  evidence  to  shew  that  in  the 
public  streets  he  bad  used  language  which  had  caused  an  obstruction, 
which  was  abusive,  which  did  tend  to  bring  about  a  breach  of  the 
peace,  and  that  he  threatened  and  intended  to  do  similar  acts  in  another 
place.  The  fact  that  he  had  promised  not  to  hold  a  meeting  at  one 
place,  but  had  held  it  within  a  quarter  of  a  mile  of  that  place  on  the 
same  day,  shews,  at  any  rate,  that  the  magistrate  was  justified  in 
taking  precautions  to  prevent  a  repetition  of  his  previous  conduct. 


SECT,  v.]  WISE    V.   DUNNING.  293 

Further,  I  think  that  the  information  was  sufficient  to  justify  the 
magistrate  in  hearing  the  evidence,  and  that  any  omission  in  the  lan- 
guage of  the  information,  although  it  does  allege  meetings  on  the  high- 
wa}'  and  fear  of  a  breach  of  the  peace,  was  ampl}'  cured  by  the  evidence 
which  was  given.  The  magistrate  heard  the  information  ;  the  appel- 
lant was  represented  b}'  a  solicitor,  and  elected  to  give  no  evidence. 
Instead  of  being  punished,  he  was  properl}^  bound  over  to  keep  the 
peace.  I  am  of  opinion  that  the  magistrate  acted  within  his  jurisdic- 
tion, and  quite  rightly  ;  that  the  points  of  law  raised  on  behalf  of  the 
appellant  fail,  and  that  our  judgment  should  be  for  the  respondent. 

Darling,  J.  I  am  of  the  same  opinion.  I  think  it  necessary  to 
summarize  shortly  the  facts  which  were  proved  before  the  magistrate. 
To  begin  with,  we  have  the  appellant's  own  description  of  himself. 
He  calls  himself  a  "  crusader,"  who  is  going  to  preach  a  Protestant 
crusade.  In-order  to  do  this  he  supplied  himself  with  a  crucifix,  which 
he  waved  about,  and  round  liis  neck  were  hung  beads  —  obviously  de- 
signed-to  represent  the  rosaries  used  by  Roman  Catholics.  Got  up  in 
this  wa}'  he  admittedly  made  use  of  expressions  most  insulting  to  the 
faith  of  the  Roman  Catholic  population  amongst  whom  he  went.  There 
had  been  disturbances  and  riots  caused  by  this  conduct  of  his  before, 
and  the  magistrate  has  found  tliat  the  language  of  the  appellant  was 
provocative,  and  that  it  was  likel}'  to  occur  again.  Large  crowds  had 
assembled  in  the  streets,  and  a  serious  riot  was  onlj'  prevented  by  the 
interference  of  the  police.  Now,  what  was  the  natural  consequence  of 
the  appellant's  acts?  It  was  what  has  happened  over  and  over  again, 
what  has  given  rise  to  all  the  cases  which  were  cited  to  us,  and  what 
must  be  the  inevitable  consequence  if  persons,  whether  Protestants  or 
Catholics,  are  to  be  allowed  to  outrage  one  another's  religion  as  the 
appellant  outraged  the  religion  of  the  Roman  Catholics  of  Liverpool. 
The  kind  of  person  which  the  evidence  here  shews  the  appellant  to  be 
I  can  best  describe  in  the  language  of  Butler.     He  is  one  of 

"...  that  stubborn  crew 
Of  errant  saints,  whom  all  men  grant 
To  be  the  true  Church  Militant ; 


A  sect,  whose  cliief  devotion  lies 

In  odd  perverse  antipathies."  —  Hndlbras,  Pt.  I. 


In  my  view,  the  natural  consequence  of  those  people's  conduct  has  been 
to  create  the  disturbances  and  riots  which  have  so  often  given  rise  to 
this  sort  of  case.  Counsel  for  the  appellant  contended  that  the  natural 
consequence  must  be  taken  to  be  the  legal  acts  which  are  a  consequence. 
I  do  not  think  so.  The  natural  consequence  of  such  conduct  is  illegal- 
ity. I  think  that  the  natural  consequence  of  this  "  crusader's  "  elo- 
quence has  been  to  produce  illegal  acts,  and  that  from  his  acts  and 
conduct  circumstances  have  arisen  which  justified  the  magistrate  in 
binding  him  over  to  keep  the  peace  and  be  of  good  behaviour.     In  the 


2©4 


WISE    V.   DUNNING. 


[chap.  III. 


judgment  of  O'Brien,  C.  J.,  in  Reg.  v.  Justices  of  Londonderry,  supra, 
there  is  this  passage  :  "  Now  I  wish  to  make  the  ground  of  my  judgment 
clear,  and  carefully  to  guard  against  being  misunderstood.  I  am  per- 
fectly satisfied  that  the  magistrates  did  not  make  the  order  which  is 
impugned  by  reason  of  there  having  been,  or  there  being  likely  to  be, 
any  obstruction  of  the  highwa}',  and  that  the  true  view  of  what  took 
place  is  that  the  defendants  were  bound  over  in  respect  of  an  appre- 
hended breach  of  the  peace  ;  and,  in  my  opinion,  there  was  no  evidence 
to  warrant  that  apprehension."  It  is  clear  that  if  there  had  been  evi- 
dence to  warrant  that  apprehension,  the  Chief  Justice  would  have  held 
the  magistrates'  decision  in  that  case  to  be  right.  It  is  said  that  Beatty 
V.  Gillbanks,  supra,  is  in  conflict  with  that  decision.  I  am  not  sure  that 
it  is.  I  am  inclined  to  think  that,  having  regard  to  the  passage  which 
my  Lord  read  from  Field,  J.'s,  judgment  in  Beatty  v.  Gillbanks,  supra, 
the  whole  question  is  one  of  fact  and  evidence.  But  I  do  not  hesitate 
to  sa}'  that,  if  there  be  a  conflict  lietween  these  two  cases,  I  prefer  the 
law  as  it  is  laid  down  in  Reg.  v.  Justices  of  Londonderrj',  28  L.  R.  Ir. 
440.  If  that  be  a  right  statement  of  the  law.  as  I  think  it  is,  the  magis- 
trate was  perfectly  justified  in  coming  to  the  conclusion  he  did  come  to 
in  this  case,  even  without  taking  into  consideration  the  question  of  the 
local  Act  of  Parliament  to  which  we  were  referred. 

For  these  reasons  I  am  of  opinion  that  the  magistrate's  order  was 
right. 

Channell,  J.  I  am  of  the  same  opinion.  I  agree  with  the  proposi- 
tion for  which  counsel  for  the  appellant  contended  —  namely,  that  the 
law  does  not  as  a  rule  regard  an  illegal  act  as  being  the  natural  conse- 
quence of  a  temptation  which  may  be  held  out  to  commit  it.  For  in- 
stance, a  person  who  exposes  his  goods  outside  his  shop  is  often  said  to 
tempt  people  to  steal  them,  but  it  cannot  be  said  that  that  is  the  natural 
consequence  of  what  he  does.  Again,  the  House  of  Lords  has  recentl}^ 
held  that,  where  a  blank  space  is  left  in  a  cheque  which  enables  a 
person  to  increase  the  amount  by  adding  figures,  it  is  not  the  natural 
consequence  that  somebody  should  be  led  to  commit  forger\'  bj'  writing 
figures  into  the  cheque.  The  proposition  is  correct  and  realh*  familiar ; 
but  I  think  the  cases  with  respect  to  apprehended  breaches  of  the  peace 
shew  that  the  law  does  regard  the  infirmity  of  human  temper  to  the 
extent  of  considering  that  a  breach  of  the  peace,  although  an  illegal  act, 
may  be  the  natural  consequence  of  insulting  or  abusive  language  or 
conduct.  Possibly  this  is  an  exception  to  the  rule  which  the  appellant's 
counsel  pointed  out  to  us  ;  but  I  think  it  is  quite  clearly  made  out  upon 
the  cases  which  have  been  cited  to  us. 

I  therefore  think  that  the  decision  of  the  magistrate  was  fight. 

Judgment  for  the  Respondent. 


SECT.  V.J  REGINA  V.    MITCHELL.  295 

REGINA   V.  MITCHELL. 
Crown  Case  Reserved.     1840. 

[Reported  2  Moody,  120.] 

The  prisoner  Catherine  Michael  was  tried  before  Mr.  Baron  Alder- 
son  at  the  Central  Criminal  Court  in  April,  1840  (Mr.  Justice  Littledale 
being  present;,  for  the  wilful  murder  of  George  Michael,  an  infant  of 
the  age  of  nine  months,  by  administering  poison. 

It  appeared  in  evidence  that  the  prisoner,  on  the  27th  day  of  March 
last,  delivered  to  one  Sarah  Stephens,  with  whom  the  child  was  at 
nurse,  a  quantity  of  laudanum,  about  an  ounce,  telling  the  said  Sarah 
Stephens  that  it  was  proper  medicine  for  the  child  to  take,  and  direct- 
ing her  to  administer  to  the  child  every  night  a  teaspoonful  thereof; 
that  such  a  quantity  as  a  teaspoonful  was  quite  sufficient  to  kill  a  child ; 
and  that  the  prisoner's  intention,  as  shown  by  the  finding  of  the  jury, 
in  so  delivering  the  laudanum  and  giving  such  directions  as  aforesaid,  ^ 
was  to  kill  the  child. 

That  Sarah  Stephens  took  home  with  her  the  laudanum,  and  thinking 
the  child  did  not  require  medicine  had  no  intention  of  administering  it. 
She,  however,  not  intending  to  give  it  at  all,  left  it  on  the  mantelpiece 
of  her  room,  which  was  in  a  different  house  from  where  the  prisoner 
resided,  she,  the  prisoner,  then  being  a  wet  nurse  to  a  lady  ;  and  some 
days  afterwards,  that  is,  on  the  31st  of  March,  a  little  boy  of  the  said 
Sarah  Stephens,  of  the  age  of  five  years,  during  the  accidental  absence 
of  Sarah  Stephens,  who  had  gone  from  home  for  some  hours,  removed 
the  laudanum  from  its  place  and  administered  to  the  prisoner's  child 
a  much  larger  dose  of  it  than  a  teaspoonful,  and  the  child  died  in  con- 
sequence. 

The  jury  were  directed  that  if  the  prisoner  delivered  to  Sarah  vStephens 
the  laudanum,  with  intent  that  she  should  administer  it  to  the  child  and 
thereby  produce  its  death,  the  quantity  so  directed  to  be  administered 
being  sufficient  to  cause  death  ;  and  that  if  (the  prisoner's  original  in- 
tention still  continuing)  the  laudanum  was  afterwards  administered  by 
an  unconscious  agent,  the  death  of  the  child  under  such  circumstances 
was  murder  on  the  part  of  the  prisoner. 

They  were  directed  that  if  the  teaspoonful  of  laudanum  was  sufficient 
to  produce  death,  the  administration  by  the  little  boy  of  a  nmch  larger 
quantity  would  make  no  difference. 

The  jury  found  the  prisoner  guilty.  The  judgment  was  respited, 
that  the  opinion  of  the  judges  might  be  taken  whether  the  facts  above 
stated  constituted  an  administering  of  the  poison  by  the  prisoner  to 
the  deceased  child. 

This  case  was  considered  by  all  the  judges  (except  Gurnet,  B.,  and 
Maule,  J.),  in  Easter  term,  1 840,  and  they  were  unanimously  of  opinion 
that  the  conviction  was  riiiht. 


296  EEX    V.   McDAXIEL.  [CHAP.  III. 

REX  V.  McDANIEL. 
Crown  Case  Reserved.     1756. 

[Reported  Leach  {4:tk  ed.),  44.] 

At  the  Old  Bailey,  January  Session,  1754,  one  Joshua  Kidden  was 
tried  before  Mr.  Justice  Foster,  for  robbing  Mary  Jones,  widow,  on 
the  highway,  of  one  guinea,  a  half  crown,  and  two  shillings  and  six- 
pence. The  prosecutrix  swore  very  positively  to  the  person  of  the 
prisoner  and  to  the  circumstances  of  the  robbery,  in  which  she  was 
confirmed  by  one  Berr}'.  Tlie  prisoner,  on  the  evidence  of  these  two 
witnesses,  was  convicted  and  executed  :  and  on  the  first  of  March  fol- 
lowing the  reward  of  forty  pounds,  given  by  4  &  5  Will,  and  Mary, 
c.  8,  to  those  who  shall  convict  a  highwa}'  robber,  was  divided  between 
the  prosecutrix,  Mary  Jones,  John  Berry,  Stephen  Macdaniel,  and 
Thomas  Cooper.  The  history  of  this  prosecution  la}'  concealed  in  the 
minds  of  its  fabricators  until  the  9th  of  August,  1754,  when  the  high 
constable  of  the  hundred  of  Blackheath  having  taken  up  one  Blee  on 
suspicion  of  being  a  thief,  it  was  discovered  to  have  been  a  conspiracy 
and  contrivance  to  obtain  the  reward. 

Diligent  search  was  accordingly  made  to  apprehend  the  miscreants 
concerned  in  this  extraordinar}'  transaction  ;  and  at  the  Old  Bailey  in 
June  Session,  1756,  Stephen  Macdaniel,  John  Berrj-,  and  Mary  Jones 
were  indicted  before  Mr.  Justice  Foster,  present  Mr.  Baron  Smythe, 
for  the  wilful  murder  of  Joshua  Kidden,  in  maliciousl}'  causing  him  to 
be  unjustly  apprehended,  falsely  accused,  tried,  convicted,  and  exe- 
cuted, well  knowing  him  to  be  innocent  of  the  fact  laid  to  his  charge, 
with  an  intent  to  share  to  themselves  the  reward,  etc.  The  prisoners 
were  convicted,  upon  the  clearest  and  most  satisfactory'  evidence,  of  the 
fact,  and  a  scene  of  depravity  was  disclosed  as  horrid  as  it  was  unex- 
ampled. The  judgment,  however,  was  respited,  upon  a  doubt  whether 
an  indictment  for  murder  would  lie  in  this  case.  The  special  circum- 
stances were  accordingly  entered  upon  the  record,  together  with  an 
additional  finding  of  the  jury,  '"  That  Justice  Hall,  in  the  Old  Baile\-,  is 
situated  within  the  county  of  the  city  of  London  ;  and  that  felonies  com- 
mitted in  the  County  of  Middlesex  have  from  time  immemorial  been 
accustomed  to  be  tried  there,"  in  order  that  the  point  of  law  might 
be  more  full\'  considered  upon  motion  in  arrest  of  judgment.  But 
Sir  Robert  Henle\%  the  Attorney-General,  declined  to  argue  it,  and 
the  prisoners  were  at  a  subsequent  session  discharged  from  that 
indictment. 

Sir  William  Blackstone,  however,  says  that  there  were  grounds  to 
believe  it  was  not  given  up  from  any  apprehension  that  the  point  was 
not  maintainable,  but  from  other  prudential  reasons,^ 

^  " The  author  has  heard  Lord  Mansfield,  C.  J.,  make  the  same  observation,  and 
say  that  the  opinions  of  several  of  the  juds;es  at  that  time,  and  his  own,  were  strongly 
in  support  of  the  indictment."     1  East  P.  C,  333  n.  —  Ed. 


SECT.    V.|  SCHOEPFLIN   V.   COFFEY.  297 


SCHOEPFLIN  V.  COFFEY. 
Court  of  Appeals  of  New  York,  1900. 

[Reported  162  iV.  7.   12.]    ' 

Martin,  J.  This  action  was  for  both  slander  and  libel.  The  com- 
plaint contains  five  counts.  The  first  and  fifth  are  for  libel  and  the 
remainder  for  slander.  Upon  the  trial  the  court  held  that  the  com- 
plaint did  not  state  a  cause  of  action  for  slander,  as  the  words  alleged 
were  not  actionable  per  se  and  no  special  damages  were  averred.  From 
this  determination  no  appeal  was  taken.  The  case  was,  however,  sub- 
mitted to  the  jury  as  an  action  for  the  libel  charged  in  the  first  and  fifth 
counts  of  the  complaint. 

These  counts  in  substance  charge  that  on  the  fifteenth  day  t)f  May, 
1895,  at  Albany,  the  defendant  maliciously  spoke  and  published 
concerning  the  plaintiff  the  false  and  defamatory  words  following: 
"An  indictment  has  been  issued  against  Schoepflin  (meaning  this 
plaintiff)  by  the  grand  jury  of  Albany  county  in  connection  with  Camp- 
bell's ice  bill,  and  a  warrant  is  out  for  his  arrest;"  "I  know  that  an 
indictment  has  been  found  against  Schoepflin  (meaning  this  plaintiff) 
by  the  grand  jury  in  connection  with  Campbell's  ice  bill,  from  the  best 
authority  in  the  world;  I  would  gamble  on  it,"  meaning  and  declaring 
thereby  that  he  knew  the  grand  jury  of  Albany  county  had  found  an 
indictment  against  the  plaintiff,  who  was  then  a  member  of  the  legis- 
lature, for  corrupt  and  criminal  conduct  in  connection  with  a  bill 
which  had  been  introduced  and  was  pending  in  the  assembly;  that  such 
statements  were  made  in  the  presence  of  G.  Edward  Graham,  and  in 
the  presence  of  G.  Edward  Graham  and  Lewis  J.  Seabold;  and  that 
Grahain_wa§_the  manager  of  the  Associated  Press  at  Albany,  and  Sea- 
bold  was  a  reporter  and  news-gatherer  for  the  New  York  World.  It 
then  averred,  "and  thereby  defendant  caused  said  false  and  defama- 
tory statement  to  be  printed  and  published  in  most  of  the  daily  news- 
papers of  the  state  of  New  York  and  in  the  said  New  York  World." 

The  first  question  argued  was  whether  the  complaint  alleged  a  cause 
of  action  against  the  defendant  for  libel.  It  is  to  be  observed  that  after 
stating  the  slanderous  words  which  were  alleged  to  have  been  spoken 
in  the  presence  of  Graham  and  Seabold,  and  the  fact  that  they  were  re- 
porters, the  plaintiff  alleges  that  thereby  the  defendant  caused  those 
statements  to  be  printed  and  published.  The  complaint  contains  no 
direct  allegation  that  the  defendant  caused  them  to  be  printed  and  pub- 
lished, but  after  stating  certain  premises  which  included  the  speaking 
of  the  words  in  the  presence  of  the  reporter  and  manager  of  the  Asso- 
ciated Press,  it  is  averred  as  a  conclusion  from  the  preceding  allega- 
tions, but  not  as  a  fact,  that  the  defendant  thereby  caused  the  state- 
ments to  be  printed  and  published.  Obviously,  the  word  "thereby" 
was  used  in  the  sense  of  by  that  m.eans,  or  in  consequence  of  the  pre- 


298  SCHOEPFLIN  V.  COFFEY.  [CHAP.  III. 

ceding  allegations,  and,  hence,  the  averment  was  of  a  conclusion  as 
to  the  effect  or  result  of  the  facts  previously  alleged.  If  they  were  un- 
true, the  plaintiff  could  not  be  convicted  of  perjury  for  falsely  alleging 
and  verifying  an  averment  that  the  defendant  caused  the  statements 
Nraade  by  him  to  be  printed  and  published,  as  he  made  no  such  allega- 
tions, but  merely  stated  his  deduction  from  the  preceding  facts.  Ob- 
viously the  complaint  contains  no  sufficient  allegation  that  the  defendant 
caused  the  printing  or  publication  of  the  words  spoken,  to  constitute 
a  cause  of  action  against  him  for  libel. 

We  have,  however,  searched  the  record  in  vain  to  find  any  proper 
objection  or  exception  which  enables  the  defendant  upon  this  appeal 
to  avail  himself  of  the  insufficiency  of  the  complaint.  To  raise  that 
question  it  was  necessary  that  an  objection  to  its  sufficiency  should  have 
been  taken,  and  the  ground  upon  which  it  was  claimed  to  be  insufficient 
should  have  been  brought  to  the  attention  of  the  court.  It  is  not  a  fatal 
objection  on  appeal  that  the  cause  was  tried  outside  the  pleadings 
in  the  absence  of  some  specific  objection  to  that  course.  Parties 
may,  if  they  so  elect,  depart  from  the  issues  made  by  the  pleadings 
and  try  other  questions  relating  to  the  merits  of  the  controversy  by 
consent  or  acquiescence.  (Farmers'  L.  &  T.  Co.  v.  Housatonic  R.  R. 
Co.,  152  N.  Y.  251.)  As  the  question  of  the  sufficiency  of  the  com- 
plaint was  not  properly  raised  in  the  court  below,  it  cannot  be  raised 
here  for  the  first  time. 

The  next  question  presented  is  whether  the  proof  was  sufficient 
to  justify  the  court  in  submitting  to  the  jury  the  question  whether  the 
defendant  caused  or  procured  the  publication  of  the  alleged  libel.  In 
discussing  this  question,  we  shall  assume  that  a  person  who  requests, 
procures  or  directs  another  to  publish  a  libel,  or  connives  at  or  assists 
in  its  publication,  is  liable  therefor.  But  to  justify  a  jury  in  finding 
a  defendant  liable  for  such  publication,  there  must  be  some  e\adence 
that  it  was  procured  by  him,  or  that  he  was  guilty  of  some  affirmative 
act  which  secured  or  induced  it.  The  mere  speaking  of  words  in  the 
presence  of  third  persons  that  are  not  actionable  per  se  would  at  most 
amount  to  a  mere  slander,  even  if  special  damages  were  alleged,  and 
their  repetition  or  the  printing  and  publication  of  them  by  the  inde- 
pendent act  of  a  third  party,  would  not  render  the  person  speaking 
them  responsible  therefor. 

It  is  too  well  settled  to  be  now  questioned  that  one  who  utters  a 
slander,  or  prints  and  publishes  a  libel,  is  not  responsible  for  its  volun- 
tary and  unjustifiable  repetition,  without  his  authority  or  request, 
by  others  over  whom  he  has  no  control  and  who  thereby  make  them- 
selves liable  to  the  person  injured,  and  that  such  repetition  cannot  be 
considered  in  law  a  necessary,  natural  and  probable  consequence  of  the 
original  slander  or  libel.  (Newall  on  Defamation,  245;  Moak's  Under- 
bill on  Torts,  145;  M'Gregor  v.  Thwaites,  3  B.  &  C.  35.)  The  remedy 
in  such  a  case  would  be  against  the  party  who  printed  and  published 


SECT,    v.]  SCHOEPFLIN   V.   COFFEY.  299 

the  words  thus  spoken,  and  not  against  the  one  speaking  them,  as  a 
person  is  not  Hable  for  the  independent  illegal  acts  of  third  persons 
in  publishing  matters  which  may  have  been  uttered  by  him,  unless  they 
are  procured  by  him  to  be  published,  or  he  performed  some  act  which 
induced  their  publication.  (Ward  v.  Weeks,  7  Bing.  211;  Olmsted 
V.  Brown,  12  Barb.  657.)  The  repetitioji  of  defamatory  language, by 
another  than  the  first  publisher  is  not  a  natural  consequence  of  the  first 
publication,  and,  therefore,  the  loss  resulting  from  such  repetition 
is  not  generally  attributable  to  the  first  publisher.  This  rule  is  based 
upon  the  principle  that  every  person  who  repeats  a  slander  is  respon- 
sible for  the  damage  caused  by  such  repetition,  and  that  such  damage 
is  not  the  proximate  and  natural  consequence  of  the  first  publication 
of  the  slander.  (Bassell  r.  Elmore,  48  N.  Y.  564;  Fowles  v.  Bowen, 
30  N.  Y.  20;  Terwilliger  v.  Wands,  17  N.  Y.  57,  58;  Laidlaw  v.  Sage, 
158  N.  Y.  73.) 

In  the  latter  case  the  question  of  proximate  cause  was  considered, 
and  it  was  held  that  it  was  applicable  to  actions  of  tort,  and  that  the 
proximate  cause  of  an  event  was  that  which  in  a  natural  and  con- 
tinuous sequence,  unbroken  by  any  new  cause,  produces  the  event 
complained  of,  and  without  which  it  would  not  have  occurred.  Apply- 
ing the  principle  of  those  cases  to  the  question  under  consideration, 
it  becomes  obvious  that  the  speaking  of  the  words  by  the  defendant 
was  not  the  proximate  cause  of  the  injury  the  plaintiff  sustained  by 
reason  of  their  publication  in  the  various  newspapers  of  the  state. 
We  have  examined  the  case  of  Youmans  v.  Smith  (153  N.  Y.  214), 
which  is  so  firmly  relied  upon  by  the  plaintiff,  but  do  not  find  any  prin- 
ciple decided  there  which  is  in  conflict  with  the  doctrine  already  stated. 
There  the  person  who  ordered  the  matter  printed  informed  the  printer 
that  he  desired  it  for  the  purpose  of  circulation.  Under  those  circum- 
stances it  was  held  that  the  printer  was  liable. 

The  record  in  this  case  seems  to  be  entirely  barren  of  proof  that  the 
defendant  in  any  way  procured,  requested,  commanded  or  induced 
the  printing  of  the  matters  set  forth  in  the  complaint.  The  most  that 
was  established  was  that  a  person  whom  the  defendant  knew  to  be  a 
reporter  asked  him  as  to  a  report  which  was  in  circulation  concerning 
the  matters  alleged  in  the  complaint,  stating  that  he  understood 
the  defendant  had  asserted  the  facts,  which  were  subsequently  pub- 
lished, and  the  latter  admitted  having  done  so.  There  is,  however,  no 
proof  that  his  statement  was  made  for  publication,  but,  on  the  con- 
trary, the  proof  was  that  nothing  was  said  upon  the  subject.  There 
is  also  other  evidence  of  the  defendant  which  tends  to  show  that  he 
did  not  intend  that  it  should  be  published  and  had  no  design  to  pro- 
cure its  publication.  We  are  of  the  opinion  that  the  court  erred  in 
denying  the  defendant's  motion  for  a  non-suit,  and  in  not  directing  a 
verdict  for  him  upon  the  ground  that  the  proof  was  insuflScient  to 
constitute  a  cause  of  action  against  him  for  libel. ^ 

1  In  the  remainder  of  the  opinion  other  points  are  discussed. —  Ed. 


300  VICARS    V.    WILCOX.  [chap.  III. 

VICARS  V.  WILCOX. 

King's  Bench,  1806. 

[Reported  8  EaM,  1.] 

In  an  action  on  the  case  for  slander  the  plaintiff  declared,  that  whereas 
he  was  retained  and  employed  by  one  J.  O.  as  a  journeyman  for  wages, 
the  defendant  knowing  the  premises,  and  maliciously  intending  to 
injure  him,  and  to  cause  it  to  be  believed  by  J.  O.  and  others  that  the 
plaintiff  had  been  guilty  of  unlawfully  cutting  the  cordage  of  the  de- 
fendant, and  to  prevent  the  plaintiff  from  continuing  in  the  service  and 
employ  of  J.  O.  and  to  cause  him  to  be  dismissed  therefrom,  and  to 
impoverish  him;  in  a  discourse  with  one  J.  M.  concerning  the  plaintiff 
and  concerning  certain  flocking  cord  of  the  defendant  alleged  to  have 
been  before  then  cut,  said  that  he  (the  defendant)  had  last  night 
some  flocking  cord  cut  into  six-yard  lengths,  but  he  knew  who  did 
it;  for  it  was  William  Vicars;  meaning  that  the  plaintiff  had  unlaw- 
fully cut  the  said  cord.  And  so  it  stated  other  like  discourse  with 
other  third  persons,  imputing  to  the  plaintiff  that  he  had  maliciously 
cut  the  defendant's  cordage  in  his  rope  yard.  By  reason  whereof  the 
said  J.  O.  believing  the  plaintiff  to  have  been  guilty  of  unlawfully 
cutting  the  said  flocking  cord,  &c.,  discharged  him  from  his  service  and 
employment,  and  has  always  since  refused  to  employ  him;  and  also 
one  R.  P.  to  whom  the  plaintiff  applied  to  be  employed  after  his  dis- 
charge from  J.  O.,  on  account  of  the  speaking  and  publishing  the  said 
slanderous  words,  and  on  no  other  account  whatsoever,  refused  to 
receive  the  plaintiff  into  his  service.  And  by  reason  of  the  premises 
the  plaintiff  has  been  and  still  is  out  of  employ  and  damnified,  &c. 

It  appeared  at  the  trial  before  La%\Tence,  J.,  at  Stafford  that  the 
plaintiff  had  been  retained  by  J.  O.  as  a  journeyman  for  a  year  at  cer- 
tain wages,  and  that  before  the  expiration  of  the  year  his  master  had 
discharged  him  in  consequence  of  the  words  spoken  by  the  defendant. 
That  the  plaintiff  afterwards  applied  to  R.  P.  for  employment,  who 
refused  to  employ  him,  in  consequence  of  the  words,  and  because  his 
former  master  had  discharged  him  for  the  offense  imputed  to  him. 
The  plaintiff  was  thereupon  non-suited,  it  being  admitted  that  the  words 
in  themselves  were  not  actionable  \\'ithout  special  damage,  and  the 
learned  judge  being  of  opinion  that  the  plaintiff  ha\'ing  been  retained 
by  his  master  under  a  contract  for  a  certain  time  then  unexpired, 
it  was  not  competent  for  the  master  to  discharge  him  on  account  of 
the  words  spoken;  but  it  was  a  mere  wrongful  act  of  the  master,  for 
which  he  was  answerable  in  damages  to  the  plaintiff:  that  the  supposed 
special  damage  was  the  loss  of  those  advantages  which  the  plaintiff 
was  entitled  to  under  his  contract  with  his  master;  which  he  could  not 
in  law  be  considered  as  having  lost,  as  he  still  had  a  right  to  claim  them 


SECT,   v.]       QUIGLEY   V.    DELAWARE  &    HUDSON    CANAL   CO.  301 

of  his  master,  who,  \vithout  a  sufficient  cause,  had  refused  to  continue 
the  plaintiff  in  his  ser\'ice.  Secondly,  With  respect  to  the  subsequent 
refusal  of  R.  P.  to  employ  the  plaintiff,  that  it  did  not  appear  to  be 
merely  on  account  of  the  words  spoken;  but  rather  on  account  of  his 
former  master  ha\'ing  discharged  liim  in  consequence  of  the  accusa- 
tion; without  which  he  might  not  have  regarded  the  words. 

Jervis  now  moved  to  set  aside  the  non-suit,  and  urged  that  it  was 
always  deemed  sufficient  proof  of  special  damage  in  these  cases  to 
show  that  the  injury  arose  in  fact  from  the  slander  of  the  defendant, 
and  it  was  not  less  a  consequence  of  it  because  the  act  so  induced  was 
wrongful  on  the  part  of  the  master.  He  said,  that  he  could  find  no 
case  where  such  a  distinction  was  laid  dowm,  and  that  the  practice  of 
Nisi  Prius  was  understood  to  be  otherwise.  Secondly,  That  the  refusal  of 
R.  P.  to  employ  the  plaintiff  was  clear  of  that  objection ;  and  that  such 
refusal  had  proceeded  upon  the  alleged  cause  of  discharge  by  the 
first  master,  and  not  upon  the  bare  act  itself  of  discharge. 

Lord  Ellenborough,  C.  J.,  said,  that  the  special  damage  must  be 
the  legal  and  natural  consequence  of  the  words  spoken,  otherwise 
it  did  not  sustain  the  declaration :  and  here  it  was  an  illegal  consequence : 
a  mere  wTongful  act  of  the  master;  for  which  the  defendant  was  no 
more  answerable  than  if,  in  consequence  of  the  words,  other  persons 
had  afterwards  assembled,  and  seized  the  plaintiff,  and  thrown  him 
into  a  horse  pond  by  way  of  punishment  for  his  supposed  transgression. 
And  his  lordship  asked  whether  any  case  could  be  mentioned  of  an 
action  of  this  sort  sustained  by  proof  only  of  an  injury  sustained  by  the 
tortious  act  of  a  third  person.  Upon  the  second  ground,  non  liquet, 
that  the  refusal  by  R.  P.  to  employ  the  plaintiff  was  in  consequence  of 
the  words  spoken,  as  it  is  alleged  to  be:  there  was  at  least  a  concur- 
rent cause,  the  act  of  his  former  master  in  refusing  to  continue  him  in 
his  employ;  which  was  more  likely  to  weigh  with  R.  P.  than  the  mere 
words  themselves  of  the  defendant. 

The  other  judges  concurring. 

Rule  refused. 

QUIGLEY  V.   DELAWARE  &  HUDSON  CANAL  CO. 

Supreme  Court  of  Pennsylvania,  189L 

[Reported  142  Pa.  388.] 

On  June  24,  1884,  T.  F.  Quigley  brought  case  against  "The  Presi- 
dent and  Managers  and  Company  of  the  Delaware  &  Hudson  Canal 
Company,"  to  recover  for  damages  alleged  to  have  been  occasioned 
by  the  negligence  of  the  defendant's  employees.  The  defendant's 
plea  was  not  guilty. 

At  the  second  trial,  on  January  19,  1891,  the  following  facts  were 
shown : 

On  a  morning  in  the  early  part  of  May,  1884,  a  team  of  three  horses, 


302  QUIGLEY   V.    DELAWARE    &    HUDSON    CANAL   CO,     [cHAP.  III. 

belonging  to  the  plaintiff,  was  passing  through  the  ^^llage  of  Miners 
Mills,  upon  a  highway  known  as  Market  Street  and  also  as  the  Mock- 
town  Road,  dra\\ing  a  wagon  upon  which  had  been  loaded  about  two 
tons  of  building  stone.  The  horses  were  in  charge  of  a  driver  named 
William  Muench,  in  the  plaintiff's  employ.  Market  Street  was  in- 
tersected by  the  track  of  the  Central  Railroad  of  New  Jersey,  used  by 
the  defendant  company.  When  the  lead  horse  was  about  fifty  feet 
away  from  the  railroad  crossing,  Muench  stopped  to  wait  until  a  train 
of  freight  cars  upon  the  crossing  would  pass,  and  while  he  was  waiting, 
the  plaintiff  came  along  the  street  on  his  way  to  take  a  train.  The 
freight  train  having  passed,  the  driver  looked  from  the  top  of  his  load 
and  listened  for  any  other  approaching  trains  before  starting  his  team 
again.  The  testimony  for  the  plaintiff  tended  to  show  that  the  place 
at  which  the  wagon  was  standing  was  the  best  point  of  observation 
for  that  purpose,  and  that,  close  to  the  railroad,  the  xnew  along  the 
track  was  very  limited  in  consequence  of  the  track  being  laid  in  a  cut 
and  on  a  curve.  Testimony  for  the  defendant  tended  to  show  that,  at 
a  point  a  little  nearer  to  the  track,  an  unobstructed  \'iew  could  have 
been  had. 

Neither  seeing  nor  hearing  anything  to  indicate  danger,  the  driver 
started  to  cross  the  track,  but  after  the  horses  had  stepped  upon  the 
crossing  he  saw  the  engine  of  the  defendant  company  approaching,  in 
charge  of  its  employees.  The  testimony  for  the  plaintiff  tended  to 
show  that  the  engine  was  running  at  the  rate  of  over  fifteen  miles  per 
hour,  while  witnesses  for  the  defendant  testified  that  its  rate  of  speed 
was  not  more  than  four  or  five  miles  an  hour.  It  was  sufficiently  under 
control,  however,  to  be  stopped  about  twenty  feet  short  of  the  cross- 
ing. The  plaintiff  and  Muench  both  testified  that  they  heard  no  signal, 
either  by  bell  or  whistle,  of  the  approach  of  the  engine,  although  they 
were  looking  out  for  a  train  and  listening  for  such  signals.  Witnesses 
for  the  defendant  testified  that  the  whistle  was  sounded  both  at  the 
whistling  post,  about  one  thousand  feet  above  the  crossing,  and  also 
at  a  telegraph  pole,  from  three  hundred  to  four  hundred  feet  away 
from  it. 

When  the  engine  came  in  sight,  the  horses  became  frightened,  and 
jumped  forward,  and  the  driver,  belie\'ing  his  life  in  danger,  dropped 
his  lines  and  sprang  from  the  wagon.  The  horses  then  ran  across  the 
track  and  some  distance  beyond  it,  when  in  some  manner  the  lead 
horse  was  knocked  down  by  the  wheel  horses  and  run  over,  his 
leg  being  broken  so  that  he  had  to  be  killed.  The  plaintiff's  A^itnesses 
testified  that  they  thought  it  likely  that  the  lines  got  caught  in  the 
wheel  of  the  wagon  and  pulled  the  leader  around,  thus  causing  him 
to  be  knocked  down,  but  they  were  unable  to  see  exactly  how  the 
accident  occurred.  The  driver,  Muench,  testified  on  cross-examina- 
tion that  he  thought  he  might  have  controlled  the  team  if  he  had 
remained  on  the  wagon,  and  "if  the  lines  would  have  held." 


SECT,   v.]     QUIGLEY   V.    DELAWARE    &    HUDSON    CANAL    CO.  303 

Clark,  J.  In  the  general  charge,  the  court  instructed  the  jury 
that,  inasmuch  as  it  clearly  appeared  in  the  testimony  the  engineer 
had  the  locomotive  in  such  control  that  he  was  able  to  stop  at  least 
twenty  feet  above  the  crossing,  it  could  not  be  said,  under  the  cir- 
cumstances of  this  case,  that  he  was  running  at  a  negligent  rate  of 
speed;  and  that,  if  the  usual  warnings  had  been  given,  the  engineer 
would  be  taken  to  have  performed  his  full  duty  in  stopping  the  engine 
before  he  arrived  at  the  crossing. 

But  the  jury  found  that  no  warning  had  been  given;  that  the  whistle 
was  not  blown,  nor  the  bell  rung;  and,  whilst  we  think  the  weight  of 
the  testimony  was  perhaps  to  a  different  effect,  the  court  would  not 
have  been  justified  in  ^\^thdrawing  that  question  from  the  considera- 
tion of  the  jury.  The  testimony  on  part  of  the  defendant,  it  is  true, 
was  positive.  The  engineer  and  the  fireman,  and  also  Hopkins,  testi- 
fied distinctly  to  the  fact  that  the  whistle  was  blown,  not  only  at  the 
bridge,  one  thousand  feet,  but  at  the  third  telegraph  pole,  four  hun- 
dred feet  above  the  crossing.  The  testimony  on  part  of  the  plaintiff, 
however,  was  not  of  a  purely  negative  character.  Quigley  and  Muench 
testify  that  they  did  not  hear  either  the  whistle  or  the  bell  until  about 
the  time  the  lead  horse  was  on  the  crossing.  They  say  further,  how- 
ever, that,  as  the  passenger  train  was  about  due,  they  were  gi\ang  par- 
ticular attention,  were  listening  for  the  whistle,  and  that  if  it  had  been 
blown  they  would  have  heard  it.  Under  these  circumstances,  their 
testimony  is  more  than  merely  negative,  and  therefore  could  not  be 
disregarded.  The  jury  has  found  the  fact,  and  that  this  failure  to  give 
proper  warning,  as  the  engine  approached  the  crossing,  was  an  act  of 
negligence  on  the  part  of  the  engineer  which  is  to  be  imputed  to  the 
company. 

The  jury  has  also  found,  upon  competent  testimony  and  under  proper 
instructions,  that  the  driver  of  the  wagon,  before  attempting  to  cross 
the  railroad  track,  stopped  at  a  proper  place,  and  looked  and  listened 
for  the  approach  of  a  train,  and  did  not  hear  the  engine;  and  that  hav- 
ing started  and  driven  upon  the  track,  when  he  saw  the  engine  approach- 
ing as  it  did,  he  acted  as  an  ordinarily  prudent  man  would  have  acted, 
in  view  of  all  the  circiunstances,  in  jumping  off  the  wagon  to  avoid  the 
peril  which  seemed  imminent,  and  in  al:)andoning  the  horses  and  wagon 
to  the  probable  consequences.  The  verdict  of  the  jury  involves  the 
fact  that  the  driver  was  not  guilty  of  any  negligence  which  contributed 
to  the  injury.  Assuming  this  to  be  so,  what  was  the  pro.ximate  cause 
of  the  injury?  The  purpose  of  giving  a  warning  before  a  railroad  train 
or  locomotive  engine  comes  to  a  crossing,  as  the  learned  judge  very 
properly  said  in  the  general  charge,  is  not  only  to  prevent  persons  from 
dri\ang  on  the  track  in  front  of  the  approacliing  train  or  engine,  but 
also  to  give  notice  to  travelers  upon  the  highway,  so  that  they  may 
not  approach  wnthin  dangerous  proximity  to  the  train.  The  alleged 
neglect  of  this  duty  caused  the  driver  of  this  wagon  to  go  upon  the 


304  CHAMBERS    V.    CAREOLL.  [CHAP.  III. 

track,  and  into  the  peril  to  which  he  was  there  seemingly  exposed. 
The  dropping  of  the  lines  and  the  leap  from  the  wagon,  according  to 
the  finding  of  the  jury,  were  such  acts  as  an  ordinarily  prudent  per- 
son would  have  done  to  extricate  himself  from  the  threatened  danger; 
and  they  may  therefore  be  said  to  have  been  necessitated  by  the 
negligent  conduct  of  the  company.  It  was  the  fright  of  the  horses, 
and  their  abandonment  by  the  driver,  that  caused  the  injury;  but  these 
causes  were  produced  by  the  negligence  of  the  defendant,  who,  without 
warning,  ran  the  engine  into  such  dangerous  proximity  to  the  wagon 
as  to  produce  this  fright  of  the  horses,  and  to  oblige  the  defendant,  who 
felt  that  he  was  in  peril,  to  jump  from  the  wagon  and  let  the  horses 
go  without  control. 

It  might  not,  perhaps,  have  been  foreseen  exactly  how,  or  to  what 
extent,  injury  would  result;  but  the  engineer,  as  we  said  in  Bunting 
V.  Hogsett,  139  Pa.  363,  would  be  held  to  have  foreseen  whatever  con- 
sequences might  ensue  from  liis  negligence  Avithout  the  intervention 
of  some  other  independent  agency;  and  both  his  employer  and  himself 
would  be  held  for  what  might  in  the  nature  of  things  occur  in  conse- 
quence of  that  negligence,  although  in  advance  the  actual  result  might 
have  seemed  improbable.  It  is  not  certainly  known  that  the  lines  were 
caught  in  the  wheel.  The  witnesses  say  that  it  is  "likely"  they  did; 
we  do  know  that  they  were  liable  to  be  caught  in  the  wheels,  and 
this  would  account  for  the  lead  horse  having  been  turned  around  as 
he  v/as.  If  the  engineer,  by  his  negligence,  compelled  the  driver  to 
abandon  the  horses,  he  would  be  presumed  to  have  foreseen  what  was 
reasonably  liable  to  occur.  There  was  not  any  intervening  cause,  dis- 
connected with  the  primary  fault,  and  self-operating,  shown  to  exist 
in  this  case,  to  affect  the  question  of  the  defendant's  liability.  The 
negligent  act  of  the  engineer  was  the  natural,  primary,  and  proximate 
cause  of  the  injury. 

The  judgment  is  affirmed. 


CHAMBERS  v.   CARROLL. 

Supreme  Court  of  Pennsylvania,  190L 

[Reported  199  Pa.  371.] 

Fell,  J.  The  facts  on  which  the  question  to  be  considered  arises 
may  be  briefly  stated.  William  Chambers,  a  boy  twelve  years  old, 
was  seated  on  a  log  one  foot  in  diameter  and  four  feet  long,  which 
was  on  a  vacant  lot,  close  to  the  end  of  a  frame  shop  that  fronted  on 
Haverford  Avenue,  about  midway  between  59th  and  60th  Streets. 
The  shop  was  eight  feet  from  the  curb,  and  the  space  between  it  and 
59th  Street  was  open.  A  companion  named  Kennedy  sat  on  a  piece 
of  board  between  Chambers  and  the  avenue.  A  horse  and  cart  owned 
by  the  defendants,  and  in  charge  of  their  driver,  were  suddenly  turned 


SECT,    v.]  CHAMBERS    V.    CARROLL.  305 

from  the  avenue,  and  without  warning  crossed  the  curb  and  the  foot- 
walk  to  the  vacant  lot.  The  horse  was  driven  so  rapidly  that  the  boys 
did  not  see  him  until  he  was  almost  on  them,  and  he  passed  so  near 
the  end  of  the  shop  as  not  to  leave  room  for  them  to  sit  or,  probably, 
to  stand  between  it  and  the  wheel  of  the  cart,  the  distance  from  the 
building  to  the  wheel  according  to  the  estimates  of  the  witnesses  being 
from  one  to  four  feet.  Kennedy  first  saw  the  danger,  and  sprang 
up  and  ran  by  Chambers,  calling  to  him  to  get  out  of  the  way.  Ken- 
nedy escaped  without  injury.  Chambers,  in  his  attempt  to  escape, 
was  pushed  or  struck  by  the  log,  and  fell  under  the  wheel,  which  passed 
over  his  leg.  What  caused  the  log  to  move  did  not  clearly  appear. 
He  testified  that  when  he  heard  the  call,  the  horse  was  within  a  few 
inches  of  him,  and  when  he  went  to  get  up,  the  log  hit  his  leg  and 
knocked  him  down;  that  he  did  not  know  what  moved  the  log,  but 
thought  that  Kennedy  must  have  kicked  it  as  he  ran.  Kennedy 
testified  that  he  did  not  touch  the  log.  There  was  testimony  that 
earth  had  been  banked  up  against  the  end  of  the  shop  to  the  height  of 
over  a  foot,  making  an  incline  at  the  place  where  the  log  lay.  The  curb 
was  eight  inches  high,  and  carts  had  not  before  crossed  it  at  this  place, 
but  had  entered  the  lot  at  a  point  on  the  other  side  of  the  shop  near 
60th  Street. 

The  testimony  made  out  a  prima  facie  case  of  negligence  on  the 
part  of  the  driver,  who  without  warning  turned  from  the  street  and 
drove  on  the  lot  where  the  boys  were  seated  and  were  in  plain  view 
after  he  reached  59th  Street.  The  learned  trial  judge  regarded  the 
case  as  a  close  one,  but  entered  a  non-suit  on  the  ground  that  the  plain- 
tiff was  thrown  or  forced  under  the  wheel  by  the  movement  of  the  log; 
and  whether  its  movement  was  caused  by  Kennedy's  striking  it  or  by 
the  plaintiff  in  his  effort  to  escape,  the  cause  of  the  accident  was  not 
one  for  which  the  defendant  was  liable.  This,  we  think,  is  not  the  cor- 
rect view. 

The  wrongful  act  of  the  driver  was  the  direct  and  proximate  cause 
of  the  plaintiff's  injury.  It  placed  him  in  a  position  of  imminent  peril, 
where  he  would  have  been  run  over  if  he  had  sat  still,  and  where  his 
only  means  of  escape  was  to  run  at  the  side  of  the  horse  and  in  front  of 
the  wheel  until  he  passed  the  shop.  If  the  log  had  been  in  his  way, 
and  he  had  fallen  over  it,  or  if  it  had  not  been  there  at  all,  and  he  had 
tripped  and  fallen  from  some  other  cause  as  he  ran,  his  fall,  while  re- 
sulting in  his  injury  by  preventing  his  escape,  would  not  have  been 
its  dominant  cause,  but  only  an  incident  of  it.  The  result  is  the  same 
if  the  movement  of  the  log  forced  him  under  the  wheel,  and  whether 
its  movement  was  caused  by  Kennedy  in  striking  it  as  he  passed  or 
by  the  plaintiff  in  rising  from  it,  either  act  would  be  an  accidental 
one  resulting  from  the  alarm  and  the  necessity  for  hasty  action  caused 
by  the  negligent  act  of  the  driver,  and  neither  would  relieve  the  de- 
fendant of  responsibility.     In  no  sense  was  the  rolling  of  the  log  an 


300  JOHNSON    V.    NORTHWESTERN   TELEPH.    EXCH.    CO.      [CHAP.  III. 

independent  intervening  cause  which  interrupted  the  natural  sequence 
of  events  and  broke  the  chain  of  responsibiHty.  It  did  not  inflict 
the  injury,  but  only  retarded  the  plaintiff's  movements  and  prevented 
his  escape.  Had  it  inflicted  the  injury,  it  would  not  have  been  the 
responsible  cause,  for  it  would  have  been  an  intervening  cause  set  in 
motion  by  the  negligent  act  of  the  driver.  Moreover  it  would  have 
been  an  innocent  cause,  and  between  an  innocent  and  a  culpable  cause 
the  latter  will  be  held  to  be  the  proximate  and  legally  responsible 
cause.  In  Pittsburg  v.  Grier,  22  Pa.  54,  piles  of  pig  iron  had  been 
negligently  left  on  a  wharf  near  the  low  watermark;  when  the  river  rose, 
a  steamboat,  in  order  to  avoid  injury  by  the  iron,  was  backed  into  the 
stream,  where  it  was  injured  by  a  floating  object.  It  was  said  in  the 
opinion :  "  But  a  cause  is  not  too  remote  to  be  looked  to  because  it 
produced  the  danger  by  means  of  an  intermediate  agency;  when  the 
injury  was  the  immediate  consequence  of  some  peril  to  which  the 
suffering  party  was  obliged  to  expose  himself  in  order  to  avoid  the 
one  for  which  he  sues,  it  is  proximate  enough."  ^ 

The  judgment  is  reversed  with  a  'procedendo. 


JOHNSON  V.  NORTHWESTERN  TELEPHONE  EXCHANGE  CO. 

Supreme  Court  of  Minnesota,  1892. 

[Reported  48  Minn.  433.] 

GiLFiLLAN,  C.  J.  Action  for  an  injury  caused  by  the  falling  in  a 
street  in  Minneapolis  of  one  of  the  poles  of  the  defendant,  on  which 
were  suspended  its  line  wires,  which  fall  was,  as  is  alleged,  due  to 
the  rotten  and  unsound  condition  of  the  pole  (permitted  to  be  so  by 
defendant's  negligence)  rendering  it  of  insufficient  strength  to  bear 
the  weight  of  the  wires  suspended  upon  it.  At  the  close  of  the  evidence 
the  court  below  directed  a  verdict  for  the  defendant.  Upon  an  exami- 
nation of  the  evidence  we  can  see  no  reason  for  the  direction  (and  none 
is  suggested  by  the  respondent)  except  the  assumption  that  there 
intervened  between  the  negligence  of  the  defendant,  if  any  there  was, 
and  the  injury  to  plaintiff,  an  independent,  adequate  cause  of  the 
injury,  to  wit,  the  act  of  a  third  person,  which  was  what  in  law  is 
termed  the  "proximate  cause  of  the  injury."  From  the  Evidence  the 
jury  might  have  found  these  facts:  First,  that  through  the  negligence 
of  the  defendant  the  pole  was  of  insufficient  strength  to  bear  the 
strain  produced  by  the  weight  of  wire  suspended  on  it,  so  that  it  was 
in  danger  of  falling,  carrying  the  wires  down  wath  it,  and  injuring  per- 

1  See  also  Thatcher  v.  Central  Traction  Co.,  166  Pa.  65,  30  Atl.  1048;  Jackson  v. 
Galveston  H.  c^c  S.  A.  Ry.,  90  Tex.  373,  38  S.  W.  745;  Missouri  K.  &  T.  Ry.  v.  Harri- 
son (Tex.  Civ.  App.),  120  S.  W.  254.  —  Ed. 


SECT,  v.]     JOHNSON   V.    NORTHWESTERN    TELEPH.    EXCH.    CO.  307 

sons  passing  along  the  street;  second,  that,  for  the  purpose  of  sustaining 
it  and  preventing  it  falling,  the  defendant  had,  with  the  license  of  one 
Shadewald,  extended  guy  wires  from  the  top  of  the  pole  to  the  building 
of  Shadewald,  to  which  the  other  ends  of  the  guy  wires  were  fastened, 
which  served  to  stay  the  pole  upright  and  prevent  it  falling;  third,  that 
a  reasonable  time  before  the  fall  of  the  pole,  to  enable  defendant  to 
make  the  pole  safe,  Shadewald  revoked  the  license,  and  required  the 
removal  of  the  guy  wires  from  his  building;  fourth,  the  defendant  fail- 
ing to  remove  the  guy  wires,  Shadewald  cut  them  at  the  ends  attached 
to  his  building,  and  the  pole,  deprived  of  the  stay  afforded  by  them, 
broke  off  near  the  ground  and  fell  in  the  street,  injuring  plaintiff; 
fifth,  that  after  the  revocation  of  the  license  defendant  did  not  adopt 
any  means  to  render  the  pole  safe,  in  lieu  of  the  stay  of  the  guy  wires. 
Had  the  jury,  as  they  might  have  done,  found  these  to  be  the  facts, 
then  the  negligence  of  the  defendant  would  have  been  shown  to  be  a 
proximate  cause  of  the  injury.  Upon  the  revocation  of  the  license  Shade- 
wald had  the  right,  as  to  defendant,  certainly  after  allowing  it  a  reason- 
able time  in  wliich  to  take  other  means  to  make  the  pole  safe,  to  remove 
or  cut  the  guy  wires.  As  soon  as  the  license  was  withdrawn  it  was  the 
duty  of  defendant  to  make  the  pole  safe,  and,  if  it  required  something 
besides  its  own  strength  to  make  it  so,  it  was  its  duty  to  provide  some- 
thing. Its  omission  to  do  so  would  be  negligence.  Had  Shadewald 
refused  to  give  the  license  in  the  first  instance,  that  would  have  been 
no  excuse  for  failure  to  have  the  pole  safe.  His  withdrawal  of  the 
license  left  defendant  in  the  same  situation  it  would  have  been  in  had 
he  withheld  it  in  the  first  instance  —  its  duty  no  way  different.  The 
jury  might,  from  the  e\adence,  have  found  that,  had  the  defendant  done 
its  duty  in  this  respect,  the  pole  would  not  have  fallen  with  the  wires 
cut.  As  one  may  be  liable  for  doing  a  rightful  thing  in  a  negligent  man- 
ner, it  may  be  that  Shadewald  was  also  liable  for  the  injury.  If  the 
pole  was  likely  to  fall  with  the  wires  cut,  then  it  might  be  negligence 
toward  those  passing  in  the  street  to  cut  them  without  warning. 
But  that  his  negligence  contributed  to  the  injury  does  not  absolve 
the  defendant.  Suppose  the  jury  had  found,  as  the  evidence  would 
have  justified,  that  but  for  the  cutting  of  the  wires  the  pole  would  not 
have  fallen,  and  that  it  would  not  have  fallen  with  the  wires  cut,  but 
for  the  neglect  of  the  defendant,  after  the  license  was  revoked,  to  make 
the  pole  safe  —  in  other  words,  that  it  w^as  the  cooperation  of  de- 
fendant's negligence  and  Shadewald's  act  that  produced  the  injury 
—  then  it  W'Ould  be  a  case  of  concurring  negligence,  in  which  case  each 
party  guilty  of  negligence  is  liable  for  the  result.  The  negligence  of 
each  is  a  proximate  cause,  where  the  injury  w'ould  not  have  occurred 
but  for  that  negligence. 

Order  reversed} 
Mitchell,  J.,  took  no  part  in  the  decision. 

1  See  also  Evans  i'.  Chicago  &  N.  W.  Ry.,  109  Minn.  64.—  Ed. 


308  BENTLEY    V.   FISHER   LUMBER   &    MANUF.    CO.       [CHAP.  III. 

BENTLEY  v.   FISHER   LUMBER   &   MANUFACTURING   CO. 
Supreme  Court  of  Louisiana,  1899. 

[Reported  51  La.  Ann.  451.] 

Miller,  J.  The  plaintiff  appeals  from  a  judgment  awarding  her 
only  part  of  the  damages  she  claims  to  have  sustained  by  the  building 
of  a  levee  on  her  land  by  the  defendants.^  .  .  .  Obstructing  a  natural 
outlet  for  the  lands  of  others  besides  plaintiff's  the  levee  proved  a 
^fi--  /  source  of  discontent  to  the  landowners  in  the  vicinity;  and  the  result 
*  was  that  a  number  of  men  assembled,   and  cut  the  levee,  causing 

the  confined  water  to  escape  on  plaintifl''s  cultivated  lands,  below  or 
south  of  it,  destro\^ng  her  crop,  unfitting  the  land  for  the  production 
of  the  full  crop  it  would  have  j-ielded  but  for  the  precipitation  of  the 
water  on  the  land  at  a  time  too  far  advanced  in  the  season  to  admit 
of   successful   replanting.  .  .  . 

The  claim  for  damages  in  respect  to  the  land  below  or  south  of  the 
levee  encounters  the  difficulty  that  the  inundation  causing  the  alleged 
loss  of  crops  was  the  result  of  the  act  of  the  mob  cutting  the  levee. 
In  this  view,  it  was  not  the  levee  that  caused  the  damage;  for,  while 
the  levee  stood,  there  could  be  no  flooding  of  the  land.  Can  the  defend- 
ants be  held  for  the  violence  of  the  mob  that  precipitated  the  water 
on  the  land?  The  law  is  clear  that  in  suits  of  this  character,  in  com- 
puting actual  damages,  the  proximate  cause  is  that  which  the  law  re- 
gards. When  the  law  awards  other  damages  than  those  attributable 
to  the  proximate  cause,  they  are  given  as  punitory.  Sedg.  Dam., 
§  58,  et  seq.;  2  Greenl.  Ev.,  §  256.  We  have  given  attention  to  the  line 
of  authority  cited  by  plaintiff  to  connect  the  act  of  the  defendant  in 
building  the  levee  with  the  subsequent  \'iolence  of  the  mob  cutting 
it.  The  "  Squib  "  Case  is  found  in  tlie  text-books  to  illustrate  the  rule 
that  distinguishes  the  remote  from  the  proximate  cause.  The  squib 
is  thrown  in  the  market  house,  lights  on  one  stall,  then  on  another,  from 
both  of  which  it  is  thrown,  and  finally  the  squib  thus  thrown  from  the 
last  stall  enters  the  plaintiff's  eye  and  destroys  his  sight.  The  court 
attributed  the  plaintiff's  injury  to  the  party  who  first  threw  the  squib; 
in  other  words,  his  act  was  deemed  the  proximate  cause  of  the  loss. 
The  text-books  call  attention  to  the  concurrence  to  the  full  extent  of  the 
decision  of  but  one  of  the  four  judges,  and  to  the  dissent  of  Justice 
Blackstone.  Sedg.  Meas.  Dam.,  p.  58,  note.  This  type  of  cases,  cited 
in  support  of  plaintiff's  demand,  does  not,  in  our  \-iew,  support  it. 
The  hurling  of  the  squil)  in  the  case  cited,  the  wrongful  act,  is  the 
effective  and  direct  cause  of  the  loss  of  the  plaintiff's  eye.    In  the  case 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT,  v.]  SCOTT   V.   SHEPHERD.  309 

before  us  the  levee  built  by  defendant  was  harmless,  in  respect  to  plain- 
tiff's loss.  The  act  of  the  mob  was  the  direct  cause  of  that  loss.  Our 
law,  and  the  general  law  in  this  class  of  cases,  restricts  damages, 
unless  given  by  way  of  punishment,  to  the  loss  arising  from  the  proxi- 
mate cause.  Gaulden  v.  McPhaul,  4  La.  Ann.  79;  Grant  v.  McDonogh, 
7  La.  Ann.  448.  With  the  most  patient  consideration  on  this  part  of 
the  case,  we  reach  the  conclusion  of  our  learned  brother  of  the  district 
court,  that  the  plaintiff's  demand  in  this  respect  cannot  be  sustained. 

iff  Ctx>   UTU    fioWt"  oytA-  AA4'J  ^^"^^    - "    & '   '^' 
(        1        '  —  SCOTT  V.  SHEPHERD. 

Common  Pleas,   1773. 
[Reported  2  Wm.  Bl.  892.] 

Trespass  and  assault  for  throwing,  casting,  and  tossing  a  lighted 
squib  at  and  against  the  plaintiff,  and  striking  him  therewith  on  the 
face,  and  so  burning  one  of  his  eyes,  that  he  lost  the  sight  of  it,  whereby, 
&c.  On  not  guilty  pleaded,  the  cause  came  on  to  be  tried  before  Nares, 
J.,  last  summer  assizes,  at  Bridgewater,  when  the  jury  found  a  verdict 
for  the  plaintiff  with  100/.  damages,  subject  to  the  opinion  of  the 
court  on  this  case :  —  On  the  evening  of  the  fair-day  at  Milborne  Port 
28th  Octoljer,  1770,  the  defendant  threw  a  lighted  squib,  made  of 
gun  powder,  &c.,  from  the  street  into  the  market-house,  wliich  is  a 
covered  building,  supported  by  arches,  and  inclosed  at  one  end,  but 
open  at  the  other  and  both  the  sides,  where  a  large  concourse  of  people 
were  assembled;  which  lighted  squib,  so  thrown  by  the  defendant,  fell 
upon  the  standing  of  one  Yates,  who  sold  gingerbread,  &c.  That  one 
Willis  instantly,  and  to  prevent  injury  to  himself  and  the  said  wares  of 
the  said  Yates,  took  up  the  said  lighted  squib  from  off  the  said  standing, 
and  then  threw  it  across  the  said  market-house,  when  it  fell  upon 
another  standing  there  of  one  Ryal,  who  sold  the  same  sort  of  wares, 
who  instantly,  and  to  save  his  own  goods  from  being  injured,  took  up 
the  said  lighted  squib  from  off  the  said  standing,  and  then  threw 
it  to  another  part  of  the  said  market-house,  and,  in  so  throwing  it, 
struck  the  plaintiff  then  in  the  said  market-house  in  the  face  there- 
with, and  the  combustible  matter  then  bursting,  put  out  one  of  the 
plaintiff's  eyes.    Qu.     If  this  action  be  maintainable? 

This  case  was  argued  [last  term  by  Glyn,  for  the  plaintiff,  and  Burland 
for  the  defendant:  and  this  term,  the  court,  being  divided  in  their 
judgment,  delivered  their  opinions  seriatim. 

Nares,  J.,  was  of  the  opinion,  that  trespass  would  well  lie  in  the 
present  case.  That  the  natural  and  probable  consequence  of  the  act 
done  by  the  defendant  was  injury  to  somebody,  and  therefore  the 


f 


0^' 


■^^^  '-J.  '^  1  -    C 


310  SCOTT   V.    SHEPHERD.  [CHAP.  III. 

act  was  illegal  at  common  law.  And  the  throwing  of  squibs  has  by 
statute  W.  3,  been  since  made  a  nuisance.  Being  therefore  un- 
lawful, the  defendant  was  liable  to  answer  for  the  consequences,  be  the 
injury  mediate  or  immediate.  21  Hen.  7,  28,  is  express  that  malus 
animus  is  not  necessary  to  constitute  a  trespass.  So,  too,  1  Stra. 
596;  Hob.  134;  T.  Jones,  205;  6  Edw.  4,  7,  8;  Fitzh.  Trespass, 
110.  The  principle  I  go  upon  is  what  is  laid  down  in  Reynolds  and 
Clark,  Stra.  634,  that  if  the  act  in  the  first  instance  be  unlawful, 
trespass  will  lie.  Wherever  therefore  an  act  is  unlawful  at  first,  tres- 
pass wall  lie  for  the  consequences  of  it.  So,  in  12  Hen.  4,  trespass  lay 
for  stopping  a  sewer  with  earth,  so  as  to  overflow  the  plaintiff's  land. 
In  26  Hen.  8,  8  for  going  upon  the  plaintiff's  land  to  take  the  boughs 
off  which  had  fallen  thereon  in  lopping.  See  also  Hardr.  60;  Reg. 
108,  95;  6  Edw.  4,  7,  8;  1  Ld.  Raym.  272;  Hob.  180;  Cro.  Jac. 
122,  43;  F.  N.  D.  202,  [91,  g].  I  do  not  think  it  necessary,  to  main- 
tain trespass,  that  the  defendant  should  personally  touch  the  plaintiff; 
if  he  does  it  by  a  mean  it  is  sufficient.  —  Qui  facit  per  aliud  facit  per  se. 
He  is  the  person,  who,  in  the  present  case,  gave  the  mischievous 
faculty  to  the  squib.  That  mischievous  faculty  remained  in  it  till  the 
explosion.  No  new  power  of  doing  mischief  was  communicated  to  it 
by  Willis  or  Ryal.  It  is  like  the  case  of  a  mad  ox  turned  loose  in  a 
crowd.  The  person  who  turns  him  loose  is  answerable  in  trespass 
for  whatever  mischief  he  may  do.  The  intermediate  acts  of  Willis 
and  Ryal  will  not  purge  the  original  tort  in  the  defendant.  But  he 
who  does  the  first  wTong  is  answerable  for  all  the  consequential  dam- 
ages. So  held  in  the  King  and  Huggins,  2  Lord  Raym.  1574; 
Parkhurst  and  Foster,  1  Lord  Raym.  480;  Rosewell  and  Prior,  12  Mod. 
639.  And  it  was  declared  by  this  court,  in  Slater  and  Baker,  M.  8 
Geo.  3,  2  Wils.  359,  that  they  would  not  look  with  eagle's  eyes  to  see 
whether  the  e\'idence  applies  exactly  or  not  to  the  case:  but  if  the 
plaintiff  has  obtained  a  verdict  for  such  damages  as  he  deserves,  they 
will  establish  it  if  possible. 

Blackstone,  J.,  was  of  opinion,  that  an  action  of  trespass  did  not 
lie  for  Scott  against  Shepherd  upon  this  case.  He  took  the  settled  dis- 
tinction to  be,  that  where  the  injury  is  immediate,  an  action  of  trespass 
will  lie;  where  it  is  only  consequential,  it  must  be  an  action  on  the  case: 
Reynolds  and  Clarke,  Lord  Raym.  1401,  Stra.  634;  Haward  and  Bankes, 
Burr.  1114;  Harker  and  Birkbeck,  Burr.  1559.  The  lawfulness  or 
unlawfulness  of  the  original  act  is  not  the  criterion;  though  something 
of  that  sort  is  put  into  Lord  Raymond's  mouth  in  Stra.  635,  where  it 
can  only  mean,  that  if  the  act  then  in  question,  of  erecting  a  spout, 
had  been  in  itself  unlawful,  trespass  might  have  lain;  but  as  it  was  a 
lawful  act,  (upon  the  defendant's  own  ground),  and  the  injur}'  to  the 
plaintiff  only  consequential,  it  must  be  an  action  on  the  case. 
But  tliis  cannot  be  the  general  rule;  for  it  is  held  by  the  court  in  the 
same  case,  that  if  I  throw  a  log  of  timber  into  the  highway,  (which 


SECT,  v.]  SCOTT   V.   SHEPHERD.  311 

is  an  unlawful  act),  and  another  man  tumbles  over  it,  and  is  hurt,  an 
action  on  the  case  only  lies,  it  being  a  consequential  damage;  but  if 
in  throwing  it  I  hit  another  man,  he  may  bring  trespass,  because  it  is 
an  immediate  wrong.    Trespass  may  sometimes  lie  for  the  consequences 
of  a  lawful  act.    If  in  lopping  my  own  trees  a  bough  accidentally  falls 
on  my  neighbor's  ground,  and  I  go  thereon  to  fetch  it,  trespass  lies. 
This  is  the  case  cited  from  6  Edw.  4,  7.    But  then  the  entry  is  of  itself 
an  immediate  wrong.    And  case  will  sometimes  lie  for  the  consequence 
of  an  unlawful  act.    If  by  false  imprisonment  I  have  a  special  damage, 
as  if  I  forfeit  my  recognizance  thereby,  I  shall  have  an  action  on  the 
case;  per  Powel,  -L,  U  Mod.  180.    Yet  here  the  original  act  was  un- 
lawful, and  in  the  nature  of  trespass.     So  that  lawful  or  unlawful  is 
quite  out  of  the  case;  and  the  soHd  distinction  is  between  direct  or 
immediate  injuries  on  the  one  hand,  and  mediate  or  consequential 
on  the  other.    And  trespass  never  lay  for  the  latter.     If  this  be  so,  the 
only  question  will  be,  whether  the  injury  which  the  plaintiff  suffered 
was  immediate,  or    consequential    only;    and    I    hold  it    to    be  the 
latter.     The  original  act  was,  as  against  Yates,  a  trespass;  not  as 
against  Ryal,  or  Scott.     The  tortious  act  was  complete  when  the 
squib  lay  at  rest  upon  Yates's  stall.     He,  or  any  bystander,  had,  I 
allow,  a  right  to  protect  themselves  by  removing  the  squib,  but  should 
have  taken  care  to  do  it  in  such  a  manner  as  not  to  endamage  others. 
But  Shepherd,  I  think,  is  not  answerable  in  an  action  of  trespass  and 
assault  for  the  mischief  done  by  the  squib  in  the  new  motion  im- 
pressed upon  it,  and  the  new  direction  given  it,  by  either  Willis  or 
Ryal;  who  both  were  free  agents,  and  acted  upon  their  own  judgment. 
This  differs  it  from  the  cases  put  of  turning  loose  a  wild  beast  or  a  mad- 
man.    They  are  only  instruments  in  the  hand  of  the  first  agent.     Nor 
is  it  hke  diverting  the  course  of  an  enraged  ox,  or  of  a  stone  thrown, 
or  an  arrow  glancing  against  a  tree;  because  there  the  original  motion, 
the  vis  impressa,  is  continued,  though  diverted.     Here  the  instrument  of 
mischief  was  at  rest,  till  a  new  impetus  and  a  new  direction  are  given  it, 
not  once  only,  but  by  two  successive  rational  agents.     But  it  is  said 
that  the  act  is  not  complete,  nor  the  squib  at  rest,  till  after  it  is  spent 
or  exploded.     It  certainly  has  a  power  of  doing  fresh  mischief,  and 
so  has  a  stone  that  has  been  thrown  against  my  windows,  and  now 
lies  still.    Yet  if  any  person  gives  that  stone  a  new  motion,  and  does 
farther  mischief  with  it,  trespass  will  not  lie  for  that  against  the  original 
thrower.    No  doubt  but  Yates  may  maintain  trespass  against  Shepherd. 
And,  according  to  the  doctrine  contended  for,  so  may  Ryal  and  Scott. 
Three  actions  for  one  single  act!  nay,  it  may  be  extended  in  infinitum. 
If  a  man  tosses  a  football  into  the  street,  and,  after  being  kicked  about 
by  one  hundred  people,  it  at  last  breaks  a  tradesman's  windows;  shall 
he  have  trespass  against  the  man  who  first  produced  it?    Surely  only 
against  the  man  who  gave  it  that  michievous  direction.     But  it  is 
said,  if  Scott  has  no  action  against  Shepherd,  against  whom  must  he 


312  SCOTT   V.    SHEPHERD.  [CHAP.  III. 

seek  his  remedy?  I  give  no  opinion  whether  case  would  lie  against 
Shepherd  for  the  consequential  damage;  though,  as  at  present  ad\'ised, 
I  think,  upon  the  circumstances,  it  would.  But  I  think,  in  strictness 
of  law,  trespass  would  lie  against  Ryal,  the  immediate  actor  in  this  un- 
happy business.  Both  he  and  Willis  have  exceeded  the  bounds  of 
self-defense,  and  not  used  sufficient  circumspection  in  remo\ang  the 
danger  from  themselves.  The  throwing  it  across  the  market-house, 
instead  of  brushing  it  down,  or  throwing  [it]  out  of  the  open 
sides  into  the  street,  (if  it  was  not  meant  to  continue  the  sport,  as  it 
is  called),  was  at  least  an  unnecessary  and  incautious  act.  Not  even 
menaces  from  others  are  sufficient  to  justify  a  trespass  against  a  third 
person;  much  less  a  fear  of  danger  to  either  his  goods  or  his  person;  — 
nothing  but  inevitable  necessity;  Weaver  and  Ward,  Hob.  134;  Dick- 
enson and  Watson,  T.  Jones,  205;  Gilbert  and  Stone,  Al.  35,  Styl. 
72.  So  in  the  case  put  by  Brian,  J.,  and  assented  to  by  Littleton  and 
Choke,  C.  J.,  and  relied  on  in  Raym.  467,  —  "If  a  man  assaults  me, 
so  that  I  cannot  avoid  him,  and  I  lift  up  my  staff  to  defend  myself,  and, 
in  lifting  it  up,  undesignedly  hit  another  who  is  behind  me,  an  action 
lies  by  that  person  against  me;  and  yet  I  did  a  lawful  act  in  endeavour- 
ing to  defend  myself."  But  none  of  these  great  lawyers  ever  thought 
that  trespass  would  lie,  by  the  person  struck,  against  him  who  first 
assaulted  the  striker.  The  cases  cited  from  the  Register  and  Hardres 
are  all  of  immediate  acts,  or  the  direct  and  inevitable  effects  of  the  de- 
fendants* immediate  acts.  And  I  admit  that  the  defendant  is  answer- 
able in  trespass  for  all  the  direct  and  inevitable  effects  caused  by  his 
own  immediate  act.  —  But  what  is  his  own  immediate  act?  The  throw- 
ing the  squib  to  Yates's  stall.  Had  Yates's  goods  been  burnt,  or  his 
person  injured,  Shepherd  must  have  been  responsible  in  trespass.  But 
he  is  not  responsible  for  the  acts  of  other  men.  The  subsequent  throw- 
ing across  the  market-house  by  Willis,  is  neither  the  act  of  Shepherd, 
nor  the  inevitable  effect  of  it;  much  less  the  subsequent  throwing  by 
Ryal.  Slater  and  Barker  was  first  a  motion  for  a  new  trial  after  verdict. 
In  our  case  the  verdict  is  suspended  till  the  determination  of  the  court. 
And  though  after  verdict  the  court  will  not  look  with  eagle's  eyes 
to  spy  out  a  variance,  yet,  when  a  question  is  put  by  the  jury  upon  such 
a  variance,  and  it  is  made  the  very  point  of  the  cause,  the  court  will 
not  wink  against  the  light,  and  say  that  evidence,  which  at  most  is 
only  applicable  to  an  action  on  the  case,  will  maintain  an  action  of  tres- 
pass. 2.  It  was  an  action  on  the  case  that  was  brought,  and  the  court 
held  the  special  case  laid  to  be  fully  proved.  So  that  the  present  ques- 
tion could  not  arise  upon  that  action.  3.  The  same  evidence  that  will 
maintain  trespass,  may  also  frequently  maintain  case,  but  not  e  converso. 
Every  action  of  trespass  with  a  ;jrr  quod  includes  an  action  on  the 
case.  I  may  bring  trespass  for  the  immediate  injury,  and  subjoin  a 
per  quod  for  the  consequential  damages;-^  or  may  bring  case  for  the 
consequential  damages,  and  pass  over  the  immediate  injury,  as  in 


SECT,  v.]  SCOTT    V.    SHEPHERD.  313 

the  case  from  11  Mod.  180,  before  cited.  But  if  I  bring  trespass  for  an 
immediate  injury,  and  prove  at  most  only  a  consequential  damage, 
judgment  must  be  for  the  defendant;  Gates  and  Bailey,  Tr.  6  Geo.  3, 
(2  Wils.  313).  It  is  said  by  Lord  Raymond,  and  very  justly,  in  Rey- 
nolds and  Clarke,  "We  must  keep  up  the  boundaries  of  actions, 
otherwise  we  shall  introduce  the  utmost  confusion."  As  I  therefore 
think  no  immediate  injury  passed  from  the  defendant  to  the  plaintiff, 
(and  without  such  immediate  injury  no  action  of  trespass  can  be 
maintained),  I  am  of  opinion,  that  in  this  action  judgment  ought  to  be 
for  the  defendant. 

Gould,  J.,  was  of  the  same  opinion  with  Nares,  J.,  that  this  action 
was  well  maintainable.  —  The  whole  difficulty  lies  in  the  form  of  the 
action,  and  not  in  the  substance  of  the  remedy.  The  line  is  very 
nice  between  case  and  trespass  upon  these  occasions:  I  am  persuaded 
there  are  many  instances  wherein  both  or  either  will  lie.  I  agree 
with  Brother  Nares,  that  wherever  a  man  does  an  unlawful  act,  he  is 
answerable  for  all  the  consequences;  and  trespass  will  lie  against  him, 
if  the  consequence  be  in  nature  of  trespass.  But,  exclusive  of  this,  I 
think  the  defendant  may  be  considered  in  the  same  view  as  if  he  him- 
self had  personally  throwTi  the  squib  in  the  plaintiff's  face.  The  terror 
impressed  upon  Willis  and  Ryal  excited  self-defense,  and  deprived  them 
of  the  power  of  recollection.  What  they  did  was  therefore  the  ine\a- 
table  consequence  of  the  defendant's  unlawful  act.  Had  the  squib 
been  thrown  into  a  coach  full  of  company,  the  person  throwing  it  out 
again  would  not  have  been  answerable  for  the  consequences.  What 
Willis  and  Ryal  did,  was  by  necessity,  and  the  defendant  imposed 
that  necessity  upon  them.  As  to  the  case  of  the  football,  I  think  that 
if  all  the  people  assembled  act  in  concert,  they  are  all  trespassers; 
1.  from  the  general  mischievous  intent;  2.  from  the  obxious  and  natural 
consequences  of  such  an  act:  which  reasoning  \y\\\  equally  apply  to  the 
case  before  us.  xlnd  that  actions  of  trespass  will  lie  for  the  mischievous 
consequences  of  another's  act,  whether  lawful  or  unlawful,  appears 
from  their  being  maintained  for  acts  done  in  the  plaintiff's  own  land: 
Hardr.  60;  Courtney  and  Collet,  1  Lord  Raym.  272.  I  shall  not  go 
over  again  the  ground  which  Brother  Nares  has  relied  on  and  explained, 
but  concur  in  his  opinion,  that  this  action  is  supported  by  the  e\'idence. 

De  Grey,  C.  J.  This  case  is  one  of  those  wherein  the  line  drawn 
by  the  law  between  actions  on  the  case  and  actions  of  trespass  is  very 
nice  and  delicate.  Trespass  is  an  injury  accompanied  with  force,  for 
which  an  action  of  trespass  vi  et  armis  lies  against  the  person  from  whom 
it  is  received.  The  question  here  is,  whether  the  injury  received  by  the 
plaintiff  arises  from  the  force  of  the  original  act  of  the  defendant,  or 
from  a  new  force  by  a  third  person.  I  agree  with  my  Brother 
Blackstone  as  to  the  principles  he  has  laid  down,  but  not  in  his 
application  of  those  principles  to  the  present  case.  The  real  question 
certainly  does  not  turn  upon  the  lawfulness  or  unlawfulness  of  the 


Av-vv  .f^ik 


314 


EICKER  V.   FREEMAN. 


[chap.  III. 


original  act;  for  actions  of  trespass  will  lie  for  legal  acts  when  they 
become  trespasses  by  accident;  as  in  the  cases  cited  of  cutting  thorns, 
lopping  of  a  tree,  shooting  at  a  mark,  defending  oneself  by  a  stick 
which  strikes  another  behind,  &c.  — They  may  also  not  lie  for  the  con- 
sequences even  of  illegal  acts,  as  that  of  casting  a  log  in  the  highway, 
&c. —  But  the  true  question  is,  whether  the  injury  is  the  direct  and  im- 
mediate act  of  the  defendant;  and  I  am  of  opinion,  that  in  this  case 
it  is.  The  throwing  the  squib  was  an  act  unlawful  and  tending  to 
affright  the  bystanders.  So  far,  mischief  was  originally  intended;  not 
any  particular  mischief,  but  mischief  indiscriminate  and  wanton. 
Whatever  mischief  therefore  follows,  he  is  the  author  of  it;  —  Egreditur 
personam,  as  the  phrase  is  in  criminal  cases.  And  though  criminal 
cases  are  no  rule  for  ci\'il  ones,  yet  in  trespass  I  think  there  is  an  analogy. 
Everyone  who  does  an  unlawful  act  is  considered  as  the  doer  of  all  that 
follows;  if  done  with  a  dehberate  intent,  the  consequence  may  amount 
to  murder;  if  incautiously,  to  manslaughter;  Fost.  261.  So  too,  in  1 
Ventr.  295,  a  person  breaking  a  horse  in  Lincoln's  Inn  Fields  hurt  a 
man;  held,  that  trespass  lay;  and  2  Lev.  172,  that  it  need  not  be  laid 
scienter.  I  look  upon  all  that  was  done  subsequent  to  the  original 
throwing  as  a  continuation  of  the  first  force  and  first  act,  which  will 
continue  till  the  squib  was  spent  by  bursting.  And  I  think  that  any 
innocent  person  remo\dng  the  danger  from  himself  to  another  is  justi- 
fiable; the  blame  lights  upon  the  first  thrower.  The  new  direction 
and  new  force  flow  out  of  the  first  force,  and  are  not  a  new  trespass. 
The  -writ  in  the  Register,  95a,  for  trespass  in  maliciously  cutting  down 
a  head  of  water,  which  thereupon  flowed  down  to  and  overwhelmed 
another's  pond,  shows  that  the  immediate  act  need  not  be  instanta- 
neous, but  that  a  chain  of  effects  together  will  be  sufficient.  It  has 
been  urged,  that  the  intervention  of  a  free  agent  wall  make  a  difference: 
but  I  do  not  consider  Willis  and  Ryal  as  free  agents  in  the  present  case, 
but  acting  under  a  compulsive  necessity  for  their  own  safety  and  self- 
preservation.  On  these  reasons  I  concur  with  Brothers  Gould  and 
Nares  that  the  present  action  is  maintainable. 

Postea  to  the  plaintiff. 


KICKER  V.  FREEMAN. 
Supreme  Judicial  Court  of  New  Hampshire,  1870. 

[Reported  50  A'.  H.  420.] 

Plaintiff's  testimony  tended  to  show,  that  in  the  afternoon  of  the 
aforesaid  day  he  went  alone  to  school,  and  as  he  came  into  the  school- 
house  vard  he  saw  the  defendant  standing  in  the  entry,  looking  out 


SECT,    v.]  RICKER    V.    FREEMAN.  315 

from  the  north  side  of  the  entry  door,  and  that  he  dodged  back  out  of 
sight,  and  as  plaintiff  stepped  into  the  door,  the  defendant  caught  him 
by  the  right  arm  or  "wrist,  with  both  of  his  hands,  and  swung  him  vio- 
lently round  two  or  three  time.  "  This  made  me  dizzy.  He  let  me  go, 
and  I  passed  off  in  a  northeasterly  direction  and  came  violently  against 
the  Townsend  boy,  and  Townsend  pushed  me  off.  When  defendant 
was  whirling  me  round,  sometimes  my  feet  were  not  on  the  floor,  and 
sometimes  tliey  were.  When  Townsend  pushed  me  off,  I  went  against 
the  hat  hook."i 

Foster,  J.-  .  .  .  The  more  important  inquiry  relates  to  the  charge 
and  instructions  of  the  court  to  the  jury. 

They  were  directed  to  inquire  who  was  the  first  actor  or  the  procur- 
ing cause  of  the  injury  to  the  plaintiff.  They  were  told  that  the  defend- 
ant would  be  liable  if  the  WTongful  force  which  he  gave  the  plaintiff 
carried  him  on  to  the  hook,  or  if  such  force,  combined  with  the  new  force 
given  to  him  by  Townsend,  produced  the  result.  But  if  they  should 
find  that  the  injury  received  by  the  plaintiff  resulted  entirely  from  the 
push  of  Townsend  alone,  unassisted  by  the  act  of  the  defendant,  then 
he  would  not  be  liable;  or,  in  other  words,  if  the  original  force  given  to 
the  plaintiff  by  the  defendant  had  ceased,  or  time  was  given  to  Town- 
send  for  reflection  or  delitieration  before  he  gave  his  push,  then  the 
defendant  would  not  be  liable.  The  jury  would  determine  whether 
the  force  originally  commenced  by  the  defendant  did  at  any  time  cease, 
and  whether  it  was  not  directly  continued  up  to  the  time  the  plaintiff 
struck  the  hook,  by  the  direct  agency  of  the  defendant,  Townsend 
lending  his  aid  wittingly  or  unwittingly  to  the  injury;  or  whether 
Townsend,  by  pushing  him  from  his  person,  did  more  than  to  act  in 
self-defense,  and  was  not  justified  under  the  circumstances  in  order  to 
save  his  person  and  himself  from  present  danger.  The  jury  would 
determine  also  whether,  from  the  time  the  plaintiff  was  first  seized  by 
the  defendant  and  until  the  injury  was  done,  he  could  exercise  any  self- 
control  over  his  own  person,  or  could  in  any  way  have  prevented  what 
happened  to  him. 

The  substance  of  these  instructions,  so  far  as  the  defendant's  excep- 
tions render  them  material  to  this  inquiry,  is,  that  if  the  force  or  im- 
petus given  to  the  plaintiff  by  the  defendant,  when  he  seized,  whirled, 
and  slung  him  away,  continued  in  operation,  either  alone  or  in  combi- 
nation with  the  force  or  impetus,  if  any,  communicated  by  Townsend, 
until  this  force  or  impetus  impaled  the  plaintiff  upon  the  hook,  and  so 
the  defendant,  either  solely  or  in  conjunction  with  Townsend,  inflicted 
the  injury,  such  injury  was  the  direct  and  proximate  result  of  the 
defendant's  original  wrongful  act,  and  he  must  be  answerable  for  the 
■consequences. 

It  is  quite  clear  that  but  for  the  defendant's  wrongful  act,  the  plain- 

^  Part  of  the  evidence  is  omitted.  —  Ed. 

*  Part  of  the  opinion,  discussing  the  form  of  action,  is  omitted.  —  Ed. 


316  RICKER   V.    FREEMAN.  [CHAP.  III. 

tifT  would  have  sustained  no  injury.  It  is  equally  clear  that,  under  the 
instructions  of  the  court,  the  jury  must  have  found,  in  order  to  charge 
the  defendant,  that  the  original  force  or  impetus  given  to  the  plaintiff 
had  not  ceased,  and  that  time  was  not  given  Townsend  for  reflection 
or  deliberation  before  he  pushed  the  plaintiff  oft",  and  that  Townsend, 
either  in  self-defense  or  in  obedience  to  an  uncontrollable  impulse  and 
instinct,  became  the  involuntary  means  of  continuing  the  original 
force  and  impetus  which  cast  the  plaintiff  upon  the  hook.  They  must 
also  have  found  that,  after  the  first  assault  by  the  defendant,  the  plain- 
tiff was  incapable  of  exercising  self-control  or  preventing  the  result. 

We  have  seen  that  malice  is  not  essential  to  the  maintenance  of  tres- 
pass for  an  assault,  but  that  the  action  is  supported  by  a  negligent 
act  and  pure  accident,  if  the  negligent  or  accidental  act  is  also  a 
wrongful  act.  And  we  think  the  principle  is  clearly  established,  that 
negligence  may  be  regarded  as  the  proximate  cause  of  an  injury,  of 
which  it  may  not  be  the  sole  nor  the  immediate  cause.  If  the  de- 
fendant's negligent,  inconsiderate,  and  wanton,  though  not  malicious 
act,  concurred  with  any  other  thing,  person,  or  event,  other  than  the 
plaintiff's  own  fault,  to  produce  the  injury,  so  that  it  clearly  appears 
that  but  for  such  neghgent,  wrongful  act,  the  injury  would  not  have 
happened,  and  both  circumstances  are  closely  connected  with  the  in- 
jury in  the  order  of  events,  the  defendant  is  responsible,  even  though 
his  negligent,  wrongful  act  may  not  have  been  the  nearest  cause  in  the 
chain  of  events  or  the  order  of  time.  Shearman  &  Redfield  on  Negli- 
gence, §  10,  and  cases  cited  in  note. 

In  trespass  for  an  assault,  it  cannot  be  essential  that  the  defendant 
should  personally  touch  the  plaintiff;  if  he  does  it  by  some  intermedi- 
ate agency,  it  is  sufficient.  The  intermediate  concurring  act  ^\^ll  not 
purge  the  original   tort,   nor  take  assignment  of  the  responsibility. 

In  Jordan  v.  Wyatt,  4  Grattan,  151,  Baldwin,  J.,  says:  "The  terms 
'immediate'  and  'consequential'  should,  as  I  conceive,  be  under- 
stood, not  in  reference  to  the  time  which  the  act  occupies,  or  the  space 
through  which  it  passes,  or  the  place  from  which  it  is  begun,  or  the 
intention  with  which  it  is  done,  or  the  instrument  or  agent  employed, 
or  the  lawfulness  or  unlawfulness  of  the  act,  but  in  reference  to  the 
progress  and  termination  of  the  act  —  to  its  being  done  on  the  one 
hand,  and  its  having  been  done  on  the  other.  If  the  injury  is  inflicted 
by  the  act  at  any  moment  of  its  progress  from  the  commencement  to 
the  termination  thereof,  then  the  injury  is  direct  or  immediate;  but  if 
it  arises  after  the  act  has  been  completed,  though  occasioned  by  the 
act,  then  it  is  consequential  or  collateral,  or,  more  exactly,  a  collateral 
consequence." 

The  defendant  objects  particularly  to  that  part  of  the  charge  in 
which  the  jury  were  told  that  "  if  the  original  force  given  by  Freeman 
had  ceased,  or  time  was  given  Townsend  for  reflection  or  deliberation 
before  he  gave  the  push,  then  Freeman  would  not  be  liable."    And  he 


SECT,  v.]  RICKER    V.    FREEMAN.  317 

contends  that,  under  these  instructions,  the  jury  must  have  found, 
either  that  Townsend's  force  combined  wath  the  original  impetus  given 
by  the  defendant,  or  that  Townsend  did  not  have  time  for  reflection 
and  dehberation  before  he  gave  the  push;  that  the  jury  might  have  de- 
cided the  case  upon  the  latter  consideration,  which,  he  says,  would  be 
wrong,  because  Townsend  was  bound  to  reflect  and  deliberate.  The 
force  projected  by  the  defendant  ha\'ing  ceased,  as  he  contends,  the 
new  force  given  by  Townsend  was  original,  because  not  demanded  for 
the  self-defense  of  Townsend;  that  the  plaintiff,  not  being  a  dangerous 
missile  or  instrument,  like  the  famous  squib  in  Scott  v.  Shepherd, 
Townsend  had  no  right  to  push  him  off;  and  if  he  did  so,  to  the  plain- 
tiff's injury,  the  result  cannot  be  considered  the  proximate  or  immediate 
act  of  the  defendant,  and  so  he  is  not  answerable. 

If  it  be  suggested  that  human  nature  instinctively  repels  the  forcible 
contact  of  a  person  or  thing  throwTi  or  falling  against  a  person,  the 
defendant  replies  that  the  person  thus  assailed  must  control  that  im- 
pulse, and  must  take  time  for  reflection  and  deliberation  before  he  can 
act;  or,  at  any  rate,  if  he  does  not,  the  projector  of  the  original  force 
is  exonerated,  because  the  original  force  has  ceased  and  stopped.  We 
think  this  proposition  is  altogether  too  refined. 

A  man  instinctively  repels  violent  contact  with  a  foreign  and  exter- 
nal substance.  He  can  no  more  control  the  impulse  to  ward  off  and 
repel  a  sudden  and  unlooked  for  blow,  than  an  unreasoning,  inanimate, 
but  elastic  substance  can  control,  by  superior  power  of  gra\aty,  the 
natural  repulsion  and  rebound  of  the  thing  thrown  or  falling  \-iolently 
upon  or  against  it;  and  it  can  hardly  be  said  that  the  original  force 
has  ceased  or  stopi>ed  at  all,  during  the  inconceivably  sharp  point  of 
time  interposed  between  the  contact  and  the  repulsion  of  a  blow  strik- 
ing an  inanimate  elastic  object,  or  an  object  animate,  sentient,  but 
also  involuntarily  repellant. 

The  substance  of  the  charge  in  this  particular  was,  that  if  Town- 
send  instinctively  pushed  oft"  the  plaintiff,  To\\Tisend's  push  was  the 
defendant's  act.  Tliis  was  correct.  The  act  of  Townsend  was  the  direct 
and  ine\4table  consequence  of  the  defendant's  act.  The  defendant  set 
in  motion  the  train  of  causes  which  led  directly  to  the  unfortunate 
result.  In  the  language  of  De  Grey,  C.  J.,  in  Scott  v.  Shepherd,  "  I 
look  upon  all  that  was  done  subsequent  to  the  original  throwing,  as  a 
continuation  of  the  first  force  and  first  act.  The  new  direction  and 
new  force  flow  out  of  the  first  force,  and  are  not  a  new  trespass." 

The  act  of  Townsend  is  iuA-oluntary.  Committing  no  voluntary 
wTong,  he  is  but  a  link  in  the  chain  of  causes  of  injury  of  which  the  de- 
fendant is  the  wrongful  author.  A  man  pushes  another  against  a 
board,  which,  springing,  repels  the  contact  ^\^th  the  man,  and  throws 
the  latter  against  a  rock  or  upon  the  ground.  It  is  the  act  and  fault 
of  the  original  assailant  and  not  of  the  board.  The  man  and  not  the 
board  is  liable.    The  result  in  law  is  the  same  whether  the  intermedi- 


318 


BLOOM   V.    FRANKLIN    LIFE    INSURANCE    CO. 


[chap, 


III. 


ate  concurring  object  is  a  board  or  a  boy,  if  the  boy  has  no  more  voli- 
tion than  the  board. 

The  defendant  is  to  be  regarded  as  "one  who  neghgently  sets  me- 
chanical forces  in  operation  beyond  his  power  to  stop  or  safely  direct, 
or  as  one  who  carelessly  puts  destructive  implements  or  materials  in 
situations  where  they  are  likely  to  produce  mischief."  Underbill  v. 
Manchester,  45  N.  H.  218. 

The  natural,  innocent  Impulse  of  Townsend  in  this  case  is  a  natural 
force  in  Townsend,  set  in  motion  by  the  defendant,  and  in  no  essential 
particular  differs  from  the  natural  forces  of  the  material  world.  Guille 
V.  Swan,  19  Johns.  381. 

It  was  not  necessary,  therefore,  as  we  regard  it,  that  the  jury  should 
have  come  to  the  conclusion  that  Townsend  pushed  off  the  plaintiff  in 
self-defense.  They  might  have  done  so,  upon  the  cAndence;  and  upon 
such  finding  the  defendant  would  clearly  be  liable.  Such  a  condition 
of  things  would  bring  the  case  precisely  within  the  doctrine  of  Scott  v. 
Shepherd,  and  within  the  principle  declared  by  Gould,  J.,  when  he 
says:  "I  think  the  defendant  may  be  considered  in  the  same  A-iew  as 
if  he  himself  had  personally  thrown  the  squib  in  the  plaintiff's  face. 
The  terror  impressed  on  ^Yillis  and  Ryal  excited  self-defense,  and  de- 
prived them  of  the  power  of  recollection.  What  they  did  was  therefore 
the  inevitable  consequence  of  the  defendant's  unlawful  act.  What 
Willis  did  was  by  necessity,  and  the  defendant  imposed  that  necessity 
upon  him." 


4 


BLOOM  V.  FRANKLIN  LIFE  INSURANCE  CO. 

A 

Supreme  Court  of  Indiana,  1884. 

[Reported  97  Ind.  478.] 

Elliott,  C.  J.  The  policy  of  insurance  upon  which  the  appellant's 
complaint  is  founded  contains  a  provision  that  if  the  assured  shall  die 
by  reason  of  intemperance  from  the  use  of  intoxicating  liquors,  or  in 
the  kno\\'n  violation  of  the  laws  of  the^tates  or  of  the  L^nited  States, 
the  policy  shall  l)e  void.  The  answer  of  the  appellee,  after  setting  forth 
the  proxision  of  tlie  policy,  proceeds  as  follows:  "And  this  defendant 
avers  that  the  said  August  Bloom,  the  assured,  came  to  his  death  in  the 
follo\nng  manner,  to  wit:  On  or  about  the  29th  day  of  December,  1881, 
the  said  August  Bloom,  while  in  a  state  of  intoxication  from  the  use 
of  intoxicating  liquors,  did  commit  an  assault  and  battery  upon  one 
Wilhelmina  Bloom,  the  wife  of  his  l)rother,  Albert  Bloom,  at  the  town 
of  Aurora,  and  State  of  Indiana,  and  while  thus  engaged  in  perpetrating 
said  assault  and  battery,  and  while  violently  beating,  bruising,  choking, 
and  maltreating  her,  the  said  wnfe  of  his  brother,  he,  the  said  Augu.st, 


SECT,  v.]  BLOOM    V.   FRANKLIN   LIFE    INSUKAXCE    CO.  319 

being  at  the  time  in  a  state  of  intoxication,  his  brother,  the  said  Albert, 
did  then  and  there,  for  the  purpose  of  lawfully  defending  his  wafe  against 
said  assault  and  battery,  strike  the  said  August  Bloom  upon  the 
head  with  a  jack  plane,  or  some  other  wooden  instrument,  thereby  frac- 
turing the  skull  of  him,  the  said  August,  and  causing  his  death  within  a 
few  hours  thereafter." 

There  can  be  no  question  as  to  the  force  and  validity  of  the  pro\asion 
of  the  policy  declaring  it  to  be  of  no  effect  in  the  event  that  the  assured 
shall  come  to  his  death  from  the  effects  of  intemperance,  or  while 
engaged  in  wilful  violation  of  the  law.  We  do  not,  indeed,  understand 
the  appellant  as  insisting  upon  the  invalidity  of  this  pro\nsion,  but  as 
asserting  that  the  facts  stated  do  not  show  that  the  assured  died  from 
the  effects  of  intemperance,  or  that  he  met  his  death  while  engaged  in 
kno\^^ngly  \'iolating  the  law.^ 

Whether  the  violation  of  the  law  was  the  proximate  cause  of  death, 
and  whether  it  was  an  act  increasing  the  risk,  must  in  general  be  de- 
termined from  the  facts  of  the  particular  case.  There  must  in  all 
cases,  whether  the  law  Aiolated  be  a  criminal  or  a  civil  one,  be  some 
causative  connection  between  the  act  which  constituted  the  \'iolation 
of  law  and  the  death  of  the  assured.  A  man  engaged  in  uttering  coun- 
terfeit money  might  meet  his  death  wliile  so  engaged,  and  yet  there 
might  be  circumstances  which  would  destroy  the  causal  connection 
between  the  death  and  the  \dolation  of  law,  and  in  such  a  case  it  is 
clear  that  the  company  would  not  be  relieved  from  liability.  On  tlje 
other  hand,  an  assured  might  bring  on  liis  death  while  engaged  in  the 
violation  of  a  ci\al  law,  as,  for  instance,  in  the  case  of  an  attempt 
to  force  an  entrance  into  a  man's  house  for  the  purpose  of  arresting 
him  on  cival  process.  Another  illustration  may  be  found  in  the  case 
of  a  railway  engineer  who,  in  \aolation  of  law,  neglects  to  sound  signals 
and  brings  on  a  collision  in  which  he  perishes,  and  a  hundred  examples 
are  supplied  in  cases  of  collisions  at  sea  or  on  naA'igable  streams,  brought 
about  by  a  \aolation  of  maritime  laws.  It  would  not  be  difficult  to 
multiply  examples  pro\ang  that  the  rule  must  be  that  the  known  \'io- 
lation  of  a  positive  law  relieves  the  company  where  the  act  constituting 
the  \'iolation  is  the  proximate  cause  of  death,  whether  the  positive 
law  violated  be  a  ci\nl  or  a  criminal  one. 

The  act  of  the  assured  in  this  case  was  the  proximate  cause  of  his 
death  within  the  meaning  of  the  law.  A  man  who  makes  a  \iolent 
assault  upon  a  woman  puts  his  ow^n  person  in  danger,  for  a  father,  a 
husband,  or  a  child  may  interfere  to  protect  the  assailed  woman,  and 
may  overcome  the  assailant  by  force.  Strangers  not  only  may  inter- 
fere to  protect  the  person  violently  assaulted,  but  are,  in  strict  law, 
under  a  duty  to  interfere.  The  natural  result  of  such  an  illegal  act  as 
that  of  the  assured,  therefore,  was  to  bring  his  person  into  danger, 
and  as  death  resulted  his  own  act  was  the  proximate  cause.  It  may 
'  Part  of  the  opinion  is  onaitted. —  Ed. 


820  BLOOM   V,    FRANKLIN    LIFE    INSURANCE    CO.         [CHAP.  III. 

well  be  doubted  whether  an  assured  who  \aolently  assaults  another  does 
not  cause  a  forfeiture,  even  though  the  rescuer  uses  excessive  force; 
but  that  point  we  need  not  decide,  for  the  interference  in  this  instance 
was  a  lawful  one.  While  thejinlawful  act  of  the  assured  must  tend  in 
the  natural  line  of  causation  to  his  death,  in  order  to  work  a  forfeiture^" 
it  is  not  necessary  that  the  act  should  be  the  direct  cause,  nor  that  the 
precise  consequences  wliich  actually  followed  could  Haveoeen  fore- 
seen.  It  is  enough  if  the  act  is  unla\\'ful  in  itself,  and  the  consequences 
flowing  from  it  are  such  as  might  have  been  reasonably  expected  to 
happen,  for  in  such  a  case  the  ultimate  result  is  traced  back  to  the 
original  proximate  cause.  Terre  Haute,  etc.,  R.  R.  Co.  v.  Buck,  96 
ind.  346;  Cincinnati,  etc.,  R.  R.  Co.  v.  Eaton,  94  Ind.  474;  Dunlap 
V.  Wagner,  85  Ind.  529  (44  Am.  R.  42) ;  Binford  v.  Johnston,  82  Ind. 
426  (42  Am.  R.  508);  Billman  v.  Indianapolis,  etc.,  R.  R.  Co.,  76  Ind. 
166;  S.  C.  40  Am.  R.  230.  In  the  case  of  Cluff  v.  Mutual,  etc.,  Co., 
supra,  the  decision  was,  that  where  the  assured  made  an  assault  upon 
another,  and  the  person  assaulted  killed  him,  the  policy  was  forfeited. 
The  same  general  doctrine  was  maintained  in  Bradley  v.  Mutual,  etc., 
Ins.  Co.,  supra,  but  it  was  held  that  where  there  was  any  conflict  of 
evidence,  the  question  of  whether  the  death  was  the  natural  result 
of  the  wTongful  act  must  be  left  to  the  jury.  In  the  case  of  Insurance 
Co.  V.  Seaver,  19  Wall.  531,  the  assured  was  dri\ang  in  a  race,  a  collision 
took  place,  he  leaped  from  his  sulky  and  was  Idlled,  and  the  court 
held  that  death  was  proximately  caused  by  the  unlawful  act  of  racing. 
The  subject  received  consideration  in  Miller  r.  Mutual  Benefit  Ins. 
Co.,  34  Iowa,  222,  where  the  assured,  while  suffering  from  a  fit  of  de- 
lirium tremens,  escaped  from  liis  keepers,  ran  out  into  the  street  in 
inclement  weather,  and,  by  the  exposure,  brought  on  another  form  of 
disease  which  was  the  immediate  cause  of  death.  The  court  held  that 
the  proximate  cause  of  death  was  the  excessive  use  of  intoxicating  liquor. 
But  there  is  really  no  reason  for  endeavoring  to  find  insurance  cases, 
for  the  fundamental  principle  must  be  the  same  whether  the  contract 
is  one  of  insurance  or  an  ordinary  commercial  agreement.  The  funda- 
mental principle  is  as  old  as  the  "Squib  Case"  on  the  ciAal  side  of  the 
common  law,  and  on  the  criminal  side  as  old  at  least  as  the  time  of 
Sir  Matthew  Hale.  1  Hale,  P.  C,  428;  1  Hawk.,  P.  C,  93;  Kelley  v. 
State,  53  Ind.  311:  Harvey  v.  State,  40  Ind.  516;  Terre  Haute,  etc., 
R.  R.  Co.  V.  Buck,  96  Ind.  346,  auth.  p.  350. 

Courts  cannot  be  ignorant  of  the  nature  of  men,  and  must  attribute 
to  them  the  ordinary  passions  and  weaknesses  inherent  in  human  nature. 
It  has  been  expressly  adjudged  that  courts  may  presume  that  domestic 
animals  will  act  in  conformity  to  their  usual  propensities  and  habits,  and 
surely  there  is  stronger  reason  for  extending  this  principle  to  beings 
of  intelligence,  reason,  and  affections.  Wharton  Neg.,  sections  100,  107; 
Billman  v.  Indianapolis,  etc.,  R.  R.  Co.,  supra.  It  has,  indeed,  been 
laid  down  by  respectable  authority  that  notice  will  be  taken  of  the 


SECT,  v.]  BLOOM   V.    FRANKLIN   LIFE   INSURANCE   CO.  321' 

habits  of  men  acting  in  masses,  and  if  this  be  true,  it  must  also  be  true 
that  notice  wall  be  taken  of  what  an  ordinary  man  would  likely  do 
imder  a  known  state  of  affairs.  Wharton  Neg.,  section  108.  These 
considerations  lead  to  the  conclusion  that  a  man  who  beats  and  mal- 
treats another's  wife  may  reasonably  expect  the  husband  to  defend 
her  without  being  careful  to  select  the  means  of  defense,  or  to  nicely 
weigh  the  degree  of  force.  To  expect  a  husband  to  act  coolly  and  with 
careful  circumspection  in  such  a  case  is  to  expect  an  unreasonable  thing. 
The  probability  is  that  the  husband  will  in  such  a  case  use  force,  and  this 
makes  it  probable  that  the  one  who  assaults  the  wife  wall  encounter 
force  at  the  hands  of  the  husband,  and  what  is  probable  is,  in  legal 
contemplation,  to  be  expected.  Billman  v.  Indianapolis,  etc.,  R.  R. 
Co.,  supra,  and  authorities  cited.  If,  therefore,  an  assured  does  assault 
another's  wife,  he  does  an  unlawful  thing  which  he  must  expect  will 
bring  upon  him  \'iolence  from  the  husband,  and  if  this  force  leads  to 
death,  then  the  proximate  cause  of  death  is  the  unlawful  act  which  pro- 
voked the  use  of  violence. 

The  violation  must  be  a  knowTi  one,  and  we  are  inclined  to  think 
that  the  law  violated  must  be  a  known  one,  that  is,  must  be  one  of 
which  the  \'iolator  has,  or  should  have,  actual  knowledge.  But  there 
are  many  things  of  which  no  man  can  be  ignorant,  and  among  the 
things  of  which  no  one  can  be  ignorant  is,  that  it  is  against  the  law  to 
commit  murder,  to  steal,  or  to  violently  beat  another.  We  cannot 
doubt  that  the  beating  of  Mrs.  Bloom  was  an  act  known  by  the  assured 
to  be  a  violation  of  law. 

The  fact  that  the  assured  was  intoxicated  when  he  committed  the 
assault  and  battery  upon  his  brother's  wife  does  not  change  the  law. 
Drunkenness  is  no  excuse  for  crime.  Goodwin  v.  State,  96  Ind.  550, 
and  authorities  cited.  A  man  who  voluntarily  makes  himself  drunk  is  in 
a  measure  resp>onsible  for  his  owm  irresponsibility.  But,  wai\'ing  this 
consideration,  the  degree  of  intoxication  does  not  appear  to  have 
affected  the  mental  capacity  of  the  assured,  and  the  presumption  here 
is,  as  in  all  cases,  that  the  mental  condition  was  a  normal  one. 

There  is  no  force  in  the  proposition  that  the  assured  did  not  lose  his 
life  in  a  known  violation  of  law,  but  in  consequence  of  the  ^^olation. 
The  cause  of  the  cause  is  in  law  sufficient,  and  the  cause  of  the  cause  of      ; 
death  was  the  blow  given  while  the  assured  was  in  the  act  of  xaolating 
the  law,  and  it  is  not  material  whether  death  did  or  did  not  immediately    ^ 
ensue.    Terre  Haute,  etc.,  R.  R.  Co.  v.  Buck,  »upra.  *^ 

What  we  have  said  dispKJses  of  all  the  questions  in  the  case,  and 
it  is  not  necessary  to  examine  the  special  finding. 

Judgment  affirmed. 


COMMONWEALTH   V.    CAMPBELL.  [CHAP.  III. 


COMMONWEALTH   v.   CAMPBELL. 
Supreme  Judicial  Court  of  Massachusetts.     1863. 

[Reported  7  All.  541.] 

Indictment  for  murder,  b}"  shooting  William  Currier  on  the  14th  of 
Jul}',  1863.  The  trial  took  place  in  December,  1863,  before  Bigelow, 
C.  .J.,  and  Metcalf,  Merrick,  and  Hoak,  JJ.  Foster,  A.  G.,  appeared 
for  the  Commonwealth,  and  J.  G.  Abbott  and  B.  F.  Riissdl^  for  the 
prisoner. 
r~V  The  homicide  was  committed  near  the  armor}-  in  Cooper  Street,  in 
Boston,  at  about  seven  o'clock  in  the  evening,  daring  a  riot  which 
grew  out  of  the  enforcement  of  a  draft  of  men  for  the  arra_y  ;  and  the 
evidence  offered  b}'  the  government  tended  to  show  that  the  prisoner 
was  there  participating  in  the  riot,  with  a  large  number  of  other 
persons.^  .  .    . 

It  appeared  that  a  military  force  was  called  out  to  suppress  the  riot 
in  Cooper  Street,  and  was  stationed  in  the  armory,  and  that  the  mob 
were  fired  upon  by  the  soldiers,  and  the  soldiers  by  the  mob.  After  the 
evidence  on  both  sides  was  closed,  the  attorney  general  requested,  for 
the  convenience  of  counsel,  a  decision  upon  the  following  prayer  for 
instructions:  "That  whether  Currier  was  killed  by  a  shot  from  within 
or  without  the  armory,  all  the  parties  unlawfully  engaged  in  the  trans- 
actions which  resulted  in  the  homicide  were  at  common  law  guilty,  at 
least  of  manslaughter." 

Bigelow,  C.  J.  The  instruction  asked  for  b}-  the  attorney  general, 
as  we  understand  it,  is  substantial!}-  this :  If  the  defendant  was  a  par- 
ticipator in  the  riotous  assembly,  and,  during  the  attack  made  by  it  on 
the  armory,  a  homicide  took  place,  the  defendant  is  in  law  guilty  of 
manslaughter,  although  the  evidence  may  fail  to  show  whether  the  shot 
which  killed  the  deceased  was  fired  by  the  rioters  with  whom  the 
prisoner  was  acting  in  concert,  or  by  the  soldiers  who  were  within  the 
armory,  and  engaged  in  resisting  the  attack  made  upon  the  building 
by  the  rioters  outside.  This  seems  to  us  to  present  a  novel  question. 
No  authority  has  been  cited  which  directly  supports  the  position  as- 
sumed by  the  attorney  general,  and  so  far  as  we  know  there  is  none  to 
be  found.  This  consideration,  though  by  no  means  decisive,  is  entitled 
to  some  weight,  because  the  law  of  homicide,  in  its  application  to 
almost  every  variety  and  combination  of  circumstances,  especially  to 
the  taking  of  life  by  persons  engaged  in  a  tumult  or  riot  or  other  un- 
lawful enterprise  or  design,  is  perliaps  more  fully  and  clearly  settled 
than  any  other  branch  of  the  law.  But  we  are  bound  to  examine  the 
question  further,  and  ascertain,  if  we  can,  whether  the  doctrine  in 
question  has  any  just  foundation  in  the  recognized  principles  of  law  by 
which  criminal  responsibility  for  the  acts  of  others  is  regulated  and 
governed. 

1  Part  of  the  case  discussing  a  question  of  evidence  is  omitted.  —  Ed. 


SECT,   v.]       "  COMMONWEALTH   V.    CAMPBELL.         -  323 

There  can  be  no  doubt  of  the  general  rule  of  law,  that  a  person  en-  (^ 

gaged  in  the  commission  of  an  unlawful  act  is  legally  responsible  for 
all  the  consequences  which  ma}*  naturall}-  or  necessarily  flow  from  it,  -- 

and  that,  if  he  combines  and  confederates  with  others  to  accomplish 
an  illegal  purpose,  he  is  liable  crimiivditer  for  the  acts  of  each  and  all 
who  participate  with  him  in  the  execution  of  the  unlawful  design.  As 
the}'  all  act  in  concert  for  a  common  object,  each  is  the  agent  of  all  the 
others,  and  the  acts  done  are  therefore  the  acts  of  each  and  all.  This 
doctrine,  as  applied  to  cases  of  homicide,  is  fully  stated  in  1  Hale  P.  C. 
441,  in  a  quotation  from  Dalton  in  these  words:  "If  divers  persons 
come  in  one  company  to  do  any  unlawful  thing,  as  to  kill,  rob,  or  beat      P^,  vlJ 

a  man,  or  to  commit  a  riot,  or  to  do  any  other  trespass,  and  one 
of  them  in  doing  thereof  kill  a  man,  this  shall  be  adjudged  murder  in 
them  all  that  are  present  of  that  party  abetting  him  and  consenting 
to  the  act  or  ready  to  aid  hira,  although  they  did  but  look  on."  So  in 
1  East  P.  C.  2.57,  it  is  laid  down  that  "  where  divers  persons  resolve 
generally  to  resist  all  opposers  in  the  commission  of  an}'  breach  of  the 
peace,  and  to  execute  it  with  violence,  or  in  such  a  manner  as  natu- 
rally tends  to  raise  tumults  and  affrays  ;  as  b}'  committing  a  violent 
disseisin  with  great  numbers,  or  going  to  beat  a  man.  or  rob  a  park,  or 
standing  in  opposition  to  the  sheriff's  posse,  they  must  at  their  peril 
abide  the  event  of  their  actions  ;  "  and  if  in  doing  an}'  of  these  or 
similar  acts  any  person  interfering  with  them  is  killed,  all  who  took 
part  in  the  fact  or  abetted  thereto  are  guilty  of  murder.  These  citations"^  -^  "loJ 
to  which  many  others  of  a  similar  tenor  might  be  added,  show  that  the 
rule  of  criminal  responsibility  for  the  acts  of  others  is  subject  to  the 
reasonable  limitation  that  the  particular  act  of  one  of  a  party  for  which  j 
his  associates  and  confederates  are  to  be  held  liable  must  be  shown  to  j 
have  been  done  for  the  furtherance  or  in  prosecution  of  the  common 
object  and  design  for  which  they  combined  together.  AVithout  such 
limitation,  a  person  might  be  held  responsible  for  acts  which  were  not 
the  natural  or  necessary  consequences  of  the  enterprise  or  undertaking 
in  which  he  was  engaged,  and  which  he  could  not  either  in  fact  or  in 
law  be  deemed  to  have  contemplated  or  intended.  No  person  can  be 
lield_guilty  of  homicide  unless  the  act  is  either  actually  or  construc- 
tively  his,  and  it  cannot  be  his  act  in  either  sense  unless  committed  by 
his  own  hand  or  by  some  one  acting  in  concert  with  hira,.ox  in.  further- 
ance of  a  common  object  or  purpose.  Certainly  that  cannot  be  said 
to  be  an  act  of  a  party  in  any  just  sense,  or  on  any  sound  legal  princi- 
ple, which  is  not  only  not  done  by  him,  or  by  any  one  with  whom 
he  is  associated  or  connected  in  a  common  enterprise,  or  in  attempting 
to  accomplish  the  same  end,  but  is  committed  by  a  person  who  is  his 
direct  and  immediate  adversary,  and  who  is,  at  the  moment  when  the 
alleged  criminal  act  is  done,  actually  engaged  in  opposing  and  resist- 
ing him  and  his  confederates  and  abettors  in  the  accomplishment  of 
the  unlawful  object  for  which  they  are  united.  Suppose,  for  example, 
a  burglar  attempts  to   bi-eak  into  a   dwelling-house,  and    the  own^>r 


324  COMMONWEALTH   V.    CAMPBELL.  [CHAP.  IIL 

or  occupant,  while  striving  to  resist  and  prevent  the  unlawful  entrance, 
by  misadventure  kills  his  own  servant.  Can  the  burglar  in  such  case 
be  deemed  guilty  of  criminal  homicide?  Certainh' not.  The  act  was 
not  done  by  him,  or  with  his  knowledge  or  consent ;  nor  was  it  a  neces- 
sar}'  or  natural  consequence  of  the  commission  of  the  offence  in  whicli 
he  was  engaged.  He  could  not  therefore  have  contemplated  or  in- 
tended it.  Another  illustration  will  perhaps  be  more  apposite  to  tho 
case  before  us.  Suppose,  during  the  progress  of  the  riot  in  which  it  is 
alleged  the  prisoner  was  engaged,  and  while  the  soldiers  and  others  in 
possession  of  the  armory  were  in  the  act  of  repelling  the  attack  of  the 
mob  in  the  street  b}-  firing  upon  it  with  a  cannon  which  was  used  on 
the  occasion,  that  it  had  burst  b}'  reason  of  some  secret  defect,  and 
killed  several  of  those  who  were  in  its  immediate  vicinity  ;  or  tliat 
a  soldier  while  handling  his  musket  had  bv  accident  inflicted  a  mortal 
wound  on  himself;  it  would  hardly  be  contended  that  in  either  of  these 
cases  the  whole  bod}'  of  rioters  could  be  held  legallv  responsible  for 
criminal  homicide,  by  reason  of  the  lives  that  were  thus  destroyed. 
And  yet  there  is  no  real  distinction  between  the  cases  supposed  and 
that  of  the  prisoner  at  the  bar,  if  the  rule  insisted  on  by  the  attorney 
general  is  a  sound  one.  The  taking  of  human  life,  under  the  circum- 
stances supposed,  in  a  certain  sense  was  the  result  of  the  unlawful  acts 
of  the  mob  —  that  is,  it  would  not  have  occurred  but  for  the  riot  which 
furnished  the  cause  and  occasion  of  the  use  of  the  musket  or  cannon. 

Indeed,  it  seems  to  us  that  in  every  aspect  the  doctrine  contended 
for,  if  followed  to  its  legitimate  and  logical  conclusion,  would  lead  to 
extraoi'dinary  consequences.  It  would  render  everybod}'  who  partici- 
pated in  a  transaction,  whether  acting  in  concert  or  in  opposition, 
whether  united  in  a  common  design  or  arrayed  on  opposite  sides  in 
a  contest  or  affray  in  which  each  contending  party  was  striving  to 
defeat  the  purposes  of  the  other,  if  all  acted  without  legal  justifica- 
tion, responsible  for  ever\'  criminal  act  which  was  done  by  any  person 
during  the  progress  of  the  affair  in  which  they  were  all  engaged.  Nor, 
in  applying  the  principle  in  question  to  a  case  like  the  one  before  us, 
can  we  see  any  good  reason  why  the  soldiers  who  defended  the  armory 
and  resisted  the  mob,  if  it  should  turn  out  that  the}'  acted  without 
sufficient  legal  authorit}'  to  justify  their  acts,  might  not  be  held  guilty 
of  manslaughter  for  homicides  committed  b}'  the  rioters,  if  the  latter 
are  to  be  held  responsible  for  deaths  caused  by  the  acts  of  the  soldiers  ? 
But  the  rules  of  law  do  not  give  any  countenance  to  such  a  doctrine. 
t  The  real  distinction  is  between  acts  which  a  man  does  either  actually 

.  '  or  constructive!}-,  by  himself  or  his  agents  or  confederates,  and  those 
which  were  done  by  others  acting  not  in  concert  with  him  or  to  efl'ect 

=i  a  common  object,  but  without  his  knowledge  or  assent,  either  express 
or  implied.  For  the  former  the  law  holds  him  strictly  responsible,  and 
for  all  their  necessar}'  and  natural  consequences,  which  he  is  rightfully 
deemed  to  have  contemplated  and  intended.  For  the  latter  he  is  not 
liable,  because  they  are  not  done  by  himself  or  b}'  those  with  whom  he 


SECT,  v.]  COMMONWEALTH    V.    CAMPBELL.  325 

is  associated,  and  no  design  to  commit  tliem  or  intent  to  bring  about 
tlie  results  which  flow  from  them  can  be  reasonably  imputed  to  him. 
So  the  rule  of  law  was  manifestl\'  understood  by  the  framers  of  the 
clause  contained  in  Rev.  Sts.  c.  129,  §  6,  reenacted  in  Gen.  Sts.  c.  164, 
§  6,  which  provides  that  if  any  officer,  magistrate,  or  other  person,  act- 
ing in  the  suppression  of  an  unlawful  assembly',  tumult,  or  riot  is  killed 
or  wounded,  all  persons  taking  part  in  such  violation  of  law  shall  be 
answerable  therefor.  This  was  clearly  not  intended  as  a  limitation  of 
the  liability  at  common  law,  but  onl}*  as  declarator}-  of  the  rule  as 
it  then  existed  and  was  understood. 

The  case  of  the  Philadelphia  rioters,  cited  by  the  attorney  general 
from  the  Appendix  to  Wharton's  Law  of  Homicide,  477,  is  obscurely 
and  imperfectl}-  reported.  If  it  can  be  supported  at  all  as  a  true  expo- 
sition of  the  law,  it  can  only  be  upon  the  ground  that  both  parties  or 
sides  had  a  common  object  in  view,  namel}',  a  breach  of  the  peace,  and 
that  both  went  out  by  an  agreement  or  mutual  understanding  to  en- 
gage in  an  affray  or  riot.  If  such  was  the  fact,  then,  as  in  the  case 
of  a  duel,  although  to  accomplish  the  common  purpose  they  took  oppo- 
site sides,  still  the}'  might  all  well  have  been  deemed  to  have  con- 
federated together  in  an  unlawful  enterprise,  and  thus  to  have  become 
responsible,  on  the  principle  ahead}-  stated,  for  a  criminal  act  done  in 
pursuance  of  the  common  design  by  any  one  of  their  confederates, 
with  whichever  side  he  may  have  acted  in  the  affray. 

It  may  propei'ly  I)e  added  that  we  can  see  no  foundation  in  any 
aspect  of  the  case  for  the  distinction  suggested  by  the  attorney  general 
as  to  the  degree  of  homicide  of  which  the  defendant  would  be  guilty, 
in  the  event  that  the  jury  should  find  that  the  deceased  was  killed 
liy  a  shot  fired  by  the  soldiers  in  the  armory,  and  not  by  the  mob.  If 
the  doctrine  contended  for  is  correct,  there  can  be  no  valid  reason  for 
holcling  the  defendant  guilty  of  manslaughter  only.  If  he,  as  one 
of  the  riotous  conspirators,  is  liable  at  all  for  acts  done  by  the  soldiers 
and  others  cooperating  with  them,  his  guilt  must  be  the  same  in  degree 
as  if  a  homicide  was  committed  by  one  of  the  rioters  with  whom  he 
was  acting  in  concert.  If  it  was  his  act  at  all,  then  it  was  committed 
by  him  or  his  confederates  while  engaged  in  an  unlawful  enterprise, 
and,  according  to  well-settled  principles,  it  would  be  murder,  and  not 
manslaughter.  But,  for  the  reason  already  given,  it  cannot  be  regarded 
as  an  act  for  which  he  is  in  law  responsible.  If  the  homicide  was  the 
result  of  a  shot  fired  by  the  soldiers  or  other  persons  in  the  armory, 
acting  together  in  defence  against  the  riotous  assembly,  the  defendant 
cannot  be  held  guilty  of  either  murder  or  manslaughter.  The  jury  will 
accordingly  be  instructed  that,  nnless  they  are  satisfied  beyond  a 
reasonable  doubt  that  the  deceased  was  killed  by  means  of  a  gun  or 
other  deadly  weapon  in  the  hands  of  the  prisoner,  or  of  one  of  the 
rioters  with  whom  he  was  associated  and  acting,  he  is  entitled  to  an 
acquittal.  The  jury  acquitted  the  pnsoner.'^^ 

1  Ace.  Butler  v.  People,  125  111.  641,  IB  N.  E.  338 ;  Com.  v.  Moore  (Ky.),  88  S.  W. 
1085.       Ed. 


326  PULLMAN    PALACE    CAR   CO.  V.    BLUHM.  [CHAP.  IIL 


PULLMAN  PALACE  CAR  CO.  v.  BLUHM. 

Supreme  Court  of  Illinois,  1884. 

[Reported  109  ///.  20.] 

The  action  rests  upon  allegations  by  appellee,  in  his  declara- 
tion, that  being  a  laborer  for  appellant,  using  a  defective  der- 
rick of  appellant  in  elevating  lumber  to  the  upper  part  of  a 
building  of  appellant,  he  was  hurt  by  the  falling  of  the  lumber 
upon  him,  "maiming,  bruising,  and  battering  him,  and  breaking 
and  bruising  his  arm,  and  so  disabling  him  that  he  has  been 
unable  to  do  manual  labor  from  thence  hitherto  and  remains  still 
in  the  same  condition,"  and  that  the  falling  of  the  lumber  was 
caused  "by  reason  of  the  unskillful  and  defective  workmanship  of 
defendant"  in  constructing  and  erecting  the  derrick,  and  "without 
any  fault"  upon  the  part  of  plaintiff. 

Dickey,  J.  ...  It  is  insisted  that  the  court  erred  in  p)ermitting  plain- 
tiff to  prove,  in  enhancement  of  his  damages,  that  his  arm,  which  was 
broken  between  the  shoulder  and  elbow,  was  not  cured,  and  that  the 
parts  of  the  bone,  instead  of  uniting  in  one,  had  failed  to  unite,  and 
formed  what  is  called  a  "false  joint."  Appellant  insists  that  this  last 
was  the  result  of  bad  surgery,  and,  to  be  proven,  should  have  been 
set  out  as  special  damages,  not  being,  as  he  suggests,  such  damages 
as  ordinarily  arise  from  a  broken  arm.  We  tliink  the  declaration  is 
sufficiently  specific  to  admit  the  proof.  Whether  this  particular 
ailment  (the  false  joint)  was,  or  was  not,  the  result  of  the  breaking 
of  the  arm  as  a  proximate  cause,  or  the  result  of  a  new,  independent 
factor,  for  w'hich  appellant  was  not  responsible,  could  not  be  determined 
by  the  court  as  a  question  of  law.  It  could  be  properly  tested  only 
by  hearing  the  e\'idence  and  submitting  the  questions  of  fact  to  a 
jury,  under  appropriate  instructions. 

There  is  e\'idence  tending  to  show  that  had  this  broken  arm  received 
ordinary  care  and  professional  skill,  the  parts  would  have  united  wath 
little  or  no  permanent  injury,  and  on  this  hypothesis  alone  appellant 
insists  that  the  matter  of  this  false  joint  should  have  been,  at  least 
hypothetically,  excluded  from  the  jury.  We  understand  the  law  on 
this  subject  to  be,  that  plaintiff  cannot  hold  defendant  answerable 
for  any  injury  caused,  even  in  part,  by  the  fault  of  plaintiff  in  failing 
to  use  ordinary  care  or  ordinary  judgment,  or  for  any  injury  not  re- 
sulting from  the  fault  of  defendant,  but  caused  by  some  new  inter- 
vening cause  not  incident  to  the  injury  caused  by  defendant's  wrong. 
Thus,  in  this  case,  if  it  be  conceded  that  the  false  joint,  under  proper 


SECT,  v.]        SAUTER  V.  N.  Y.  CENTRAL  &  HUDSON  RIVER  R.  R.  CO.      327 

care  and  skill,  would  not  have  resulted  from  the  breaking  of  the  arm 
alone,  but  was  brought  about  by  the  subsequent  separation  of  the 
parts  after  they  had  been  properly  set,  and  before  nature  had  formed  a 
firm  union,  then,  if  this  subsequent  separation  of  the  parts  had  been 
caused  by  an  assault  and  battery  by  a  stranger,  or  some  foreign  cause 
with  which  appellant  had  no  connection,  and  which  was  not  in  its 
nature  incident  to  a  broken  arm,  plainly  app>ellant  ought  not  to  be  held 
to  answer  for  the  false  joint;  but  if  appellee  exercised  ordinary  care  to"l 
keep  the  parts  together,  and  used  ordinary  care  in  the  selection  of 
surgeons  and  doctors,  and  nurses,  if  needed,  and  employed  those  of 
ordinary  skill  and  care  in  their  profession,  and  still  by  some  unskillful 
or  negligent  act  of  such  nurses,  or  doctors  or  surgeons,  the  parts  be- 
came separated,  and  the  false  joint  was  the  result,  appellant,  if  re- 
sponsible for  the  breaking  of  the  arm,  ought  to  answer  for  the  injury 
in  the  false  joint.  The  appellee,  when  injured,  was  bound  by  law  to  use 
ordinary  care  to  render  the  injury  no  greater  than  necessary.  It  was 
therefore  his  duty  to  employ  such  surgeons  and  nurses  as  ordinary 
prudence  in  his  situation  required,  and  to  use  ordinary  judgment  and 
care  in  doing  so,  and  to  select  only  such  as  were  of  at  least  ordinary 
skill  and  care  in  their  profession.  But  the  law  does  not  make  him 
an  insurer  in  such  case  that  such  surgeons  or  doctors,  or  nurses,  will 
be  guilty  of  no  negligence,  error  in  judgment,  or  want  of  care.  The 
liability  to  mistakes  in  curing  is  incident  to  a  broken  arm,  and  where 
such  mistakes  occur  (the  injured  party  using  ordinary  care)  the 
injury  resulting  from  such  mistakes  is  properly  regarded  as  part  of  \ 
the  immediate  and  direct  damages  resulting  from  the  breaking  of  the  J 
arm.^ 


SAUTER   V.   NEW   YORK   CENTRAL   &   HUDSON   RIVER  t^  j 


RAILROAD    CO. 

Court  of  Appeals  of  New  York,  1876. 

[Reported  66  A".   Y.  50.] 


,0 


Church,  C.  J.     The  circumstances  proved  were  sufficient  to  author- 
ize the  jury  to  find  that  the  injury  was  caused  by  the  act  of  the  de-  >- 
fendant's  employees.    The|e\'idence  tends  to  show  that  as  the  plaintiff's  / /v 
intestate  was  passing  out  of  the  car  to  alight,  a  sudden  jerk  was  given  's/^ 

1  See  also  Wallace  v.  Pennsylvania  R.  R.,  222  Pa.  556,  71  Atl.  1086.  —  Ed. 


328     SAUTER  V.  N.  Y.  CENTKAL  &  HUDSON  RIVER  R.  R.  CO.      [CHAP.  III. 

■  to  it  backward,  and  the  plaintiff  was  thrown  suddenly  forward,  his 
carpet-bag  striking  the  railing,  and  he  striking  the  carpet-bag.  This 
was  proved  to  be  sufficient  to  cause  the  hernia  of  which  he  died.  The 
circumstances  pointed  to  this  as  the  cause,  and  repelled  the  idea  of 
any  other.  True,  the  evidence  was  that  it  might  have  been  produced 
by  many  other  causes,  but  there  was  no  evidence  tending  to  prove 
that  it  was  produced  by  any  other.  On  the  contrary,  the  inference  was 
legitimate  that  it  was  not. 

It  is  claimed  that  the  injury  was  not  the  proximate  cause  of  death. 
The  deceased  had  what  the  surgeons  denominated  strangulated  hernia, 
an  injury  certain  to  produce  death,  unless  relieved.     Being  unable  to 
reduce  it  by  pressure,  an  operation  was  decided  upon  and  performed 
*  by  surgeons  of  conceded  competency  and  skill.    The  operation  is  a  very 

^  delicate  and  dangerous  one,  but  is  often  and  perhaps  generally  per- 

formed with  success.  In  this  case  the  post-mortem  examination  disclosed 
that  there  were  two  strictures,  only  one  of  which  had  been  cut,  and  that 
a  mistake  was  made  by  pressing  the  intestine  into  an  abnormal  cavity, 
•  between  the  peritoneum  and  pubic  bone,  produced  in  some  manner 
by  a  separation  of  the  peritoneum  from  the  bone,  instead  of  pressing 
it  into  the  abdomen.  There  was  a  difference  of  opinion  whether  the 
(M^""  immediate  cause  of  death  was' by  the  mistake  in  pressing  the  intestine 

1  ^  into  the  wrong  cavity  or  hy  the  natural  effect  of  the  second  stricture 

which  was  not  cut;  but  assuming  that  it  was  the  mistake,  which  is 
'  the  most  favorable  for  the  defendant,  is  the  principle  invoked  by  the 

learned  counsel  applicable?    I  think  not.    The  cases  cited  do  not  sus- 
'^"'  tain  the  position.    The  case  of  Patrick  v.  Commercial  Insurance  Com- 

„  _.  pany,  11  J.  R.   14,  was  an  action   upon   a   poHcy  against   sea  risks. 

The  vessel  stranded,  but  before  she  could  be  got  oft  she  was  forcibly 
seized  and  burned  by  a  public  enemy,  and  it  was  very  properly  held 
that  the  damage  was  from  the  capture,  and  not  the  stranding.     Le\'ie 
r.  Janson,  12  East.,  655,  was  analagous  in  principle.    To  bring  a  case 
within  the  principle  claimed,  the  general  rule  is  that  the  actual  injury 
I  must  be  occasioned  by  the  intervention  of  some  responsible  third  party 
^  or  power.    (Wharton  on  Neg.,  §  134.)    I  do  not  think  that  the  mistake 
of  the  surgeon  can,  in  any  sense,  be  regarded  as  such.     The  employ- 
V  raelit  of  a  surgeon  was  proper,  and  may  be   regarded   as  a  natural 

f  consequence  of  the  act,  and  the  mistake  which  it  is  ,e\adent  might 

be  made  by  the  most  skillful,  may  be  regarded  lof  the  same 
character.  In  Lyons  v.  The  Erie  Railway,  57  N.  Y.  489,  the  Com- 
mission of  Appeals  held,  if  one  who  is  injured  by  the  negligence 
of  another,  acts  in  good  faith  under  the  advice  of  a  competent 
physician,  even  if  it  is  erroneous,  he  may  recover,  and  that  the  error 
is  no  sliield  to  the  wrongdoer.  The  rule  is  laid  down  in  Common- 
's, \  '  wealth  V.  Hackett,  2  Allen,  137,  that  one  who  has  wilfully  inflicted 
upon  another  a  dangerous  wound  from  which  death  ensued,  is  guilty 
of  murder  or  manslaughter,  as  the  case  may  be,  although,  through 


SECT,  v.]       SAUTER  V.  N.  Y.  CENTRAL  &  HUDSON  RIVER  R.  R.  CO.        329 

want  of  due  care  or  skill,  the  improper  treatment  of  surgeons  may 
have  contributed  to  the  result. 

Here  it  is  sought  to  shield  the  WTongdoer  because  the  deceased 
failed  to  procure  relief,  although  he  used  the  usual  and  best  available 
means  for  that  purpose.  He  would  have  died  without  an  operation; 
assuming  that  by  the  mistake  of  the  surgeon  the  operation  was  not  suc- 
cessful, can  it  be  justly  said,  in  the  first  place,  that  the  surgeon  and  not 
the  injury  killed  him;  and  in  the  second  place,  that  the  surgeon  is  to 
be  regarded  as  a  responsible  intervening  third  person,  wdtliin  the 
rule  referred  to?  There  is  no  authority  that  approaches  such  a  propo- 
sition. Hence  there  was  no  error  in  refusing  to  charge  that  if  death 
was  proximately  caused  by  pressing  the  intestine  into  the  abnormal 
cavity,  the  plaintiff  could  not  recover.  The  court  had  charged  that  if 
the  hernia  was  not  the  proximate  cause  of  death  the  plaintiff  could  not 
recover,  nor  unless  it  was  caused  by  the  defendant.  The  court  also 
charged  that  if  death  was  produced  by  the  error,  ignorance,  blunder, 
or  maltreatment  of  the  surgeon,  the  plaintiff  could  not  recover.  The 
charge  was  quite  as  favorable  to  the  defendant  as  the  case  would 
warrant. 

Error  is  also  alleged  upon  the  refusal  of  the  court  to  charge  that  the 
plaintiff  could  not  recover,  unless  the  jury  found  that  the  injury 
would  be  reasonably  apprehended  by  a  prudent  man  as  the  result  of  the 
alleged  movement  of  the  cars.  The  court  declined  to  charge  other 
than  as  he  had  charged.  He  had  charged  that  if  after  the  train  was 
stopped  it  was  given  such  a  jolt  as  to  endanger  the  lives  of  passengers, 
the  act  would  be  wrongful.  The  sudden  jerking  of  a  train  backward 
while  passengers  are  rightfully  passing  out  of  the  cars,  is  evidently 
liable  to  produce  accidents,  and  under  such  circumstances  is  a  negligent 
act.  There  was  no  foundation,  therefore,  for  the  test  of  apprehended 
danger  by  a  prudent  man.  At  all  events,  the  charge  made  was  favor- 
able to  the  defendant  in  any  aspect  of  the  case.  The  Northamp- 
ton tables  were  properly  received.  (Schell  v.  Plumb,  55  N.  Y. 
592.)  The  probable  duration  of  the  deceased's  life  was  an  element 
in  estimating  damages,  and  being  so,  it  was  proper  to  give  this  evi- 
dence upon  the  question. 

The  judgment  must  be  affirmed. 
All  concur. 
Judgment  affirmed. 


330  COMMONWEALTH   V.   HACKETT.  [CHAP.  III. 


COMMONWEALTH   v.   HACKETT. 

Supreme  Judicial  Court  of  Massachusetts.     1861. 

[Reported  2  All.  136.] 

Indictmext  for  murder.^ 

The  defendant  contended  that  there  was  evidence  to  show  that  the 
ivounds  of  the  deceased  were  unskilfully  and  improperly  treated  by  the" 
surgeons  who  attended  him,  and  requested  the  court  to  instruct  the  jury 
as  follows  :  "  1.  The  rule  that  the  death  must  happen  within  a  year  and 
a  day  is  one  of  limitation  only,  and  does  not  change  the  burden  of 
proof,  or  release  the  government  from  the  duty  of  proving  affirmatively 
that  the  deceased  died  of  the  wounds  alleged  in  the  indictment.  2.  It 
is  not  enough  to  satisfy  this  burden  for  the  government  to  prove  that 
without  the  wounds  the  deceased  would  not  have  died.  3.  If  the  death 
was  caused  b}'  the  improper  applications  or  improper  acts  of  the 
surgeons  in  dressing  the  wounds,  the  case  of  the  government  is  not 
made  out." 

The  court  instructed  the  jury  in  conformity  with  the  first  clause  of 
the  instructions  asked  for,  but  declined  to  give  the  others,  and  in  place 
thereof  instructed  them,  substantially,  that  the  burden  of  proof  was 
upon  the  government  to  prove  beyond  a  reasonable  doubt  that  the 
deceased  died  of  the  wounds  inflicted  by  the  defendant,  but  that  this 
general  rule  required  explanation  in  its  application  to  certain  aspects 
of  the  present  case ;  that  a  person  who  has  inflicted  a  dangerous 
wound  with  a  deadly  weapon  upon  the  person  of  another  cannot  escape 
punishment  by  proving  that  the  wound  was  aggravated  by  improper 
applications  or  unskilful  treatment  by  surgeons  ;  that  if,  in  the  present 
case,  they  were  satisfied  that  the  wounds  inflicted  by  the  defendant  were 
improperly  and  unskilfully  treated  by  the  surgeons  in  attendance,  and 
that  such  treatment  hastened  or  contributed  to  the  death  of  the  de- 
ceased, the  defendant  was  not  for  this  reason  entitled  to  an  acquittal ; 
but  that  the  rule  of  law  was  that,  if  they  were  satisfied  beyond  a 
reasonable  doubt  that  the  defendant  inflicted  on  the  deceased  dangerous 
wounds  with  a  deadly  weapon,  and  that  these  wounds  were  unskilfully 
treated,  so  that  gangrene  and  fever  ensued,  and  the  deceased  died 
from  the  wounds  combined  with  the  maltreatment,  the  defendant  was 
guilty  of  murder  or  manslaughter  according  as  the  evidence  proved 
the  one  or  the  other ;  that,  if  they  were  satisfied  not  only  that  death 
would  not  have  ensued  but  for  the  wounds,  but  also  that  the  wounds 
were,  when  inflicted,  dangerous,  the  defendant  would  be  responsible, 
although  improper  and  unskilful  treatment  might  have  contributed  to 
tlie  death  ;  that  the  law  does  not  permit  a  person  who  has  used  a 
deadly  weapon,  and  with  it  inflicted  a  dangerous  wound  upon  another, 
to  attempt  to  apportion  his  own  wrongful  and  wicked  act,  and  divide 

1  Part  of  the  case,  which  discussed  the  admissibility  of  certaiu  evidence,  is  omitted. 
—  Ed. 


SECT,  v.]  COMMONWEALTH    V.    HACKETT.  331 

the  responsibility  of  it,  by  speculating  upon  the  question  of  the  extent 
to  which  unskilful  treatment  by  a  surgeon  has  contributed  to  the  death 
of  the  person  injured  ;  but,  if  they  were  in  doubt  whether  the  wounds 
were  dangerous,  or  caused  or  contributed  to  the  death,  or  whether  the 
deceased  might  not  have  died  from  the  unskilful  treatment  alone,  then 
the  defendant  would  be  entitled  to  an  acquittal 

The  defendant  was  found  guilty  of  manslaughter,  and  alleged 
exceptions. 

BiGELow,  C.  J.  .  .  .  We  have  looked  with  care  into  the  authorities 
which  bear  on  the  correctness  of  the  instructions  given  to  the  jury,  relat- 
ing to  the  unskilful  or  improper  treatment  of  the  wounds  alleged  to  have 
been  inflicted  by  the  i)risoner  upon  the  body  of  the  deceased.  We  find 
them  to  be  clear  and  uniform,  from  the  earliest  to  the  latest  decisions. 
In  one  of  the  first  reported  cases  it  is  said  that  "  though  a  wound  may 
be  cured,  yet  if  the  party  dieth  thereof,  it  is  murder."  The  King  v. 
Reading,  1  Keb.  17.  The  same  principle  is  stated  in  1  Hale  P.  C.  428, 
thus  :  "  If  a  man  give  another  a  stroke  which  it  may  be  is  not  in  itself 
so  mortal  but  that  with  good  care  he  might  be  cured,  yet  if  he  die  of 
this  wound  within  a  year  and  a  day,  it  is  homicide  or  murder,  as  the 
case  is,  and  so  it  has  been  alwaj's  ruled."  "  If  a  man  receives  a  wound, 
which  is  not  in  itself  mortal,  but  either  for  want  of  helpful  applications, 
or  neglect  thereof,  it  turns  to  a  gangrene,  or  a  fever,  and  that  gangrene 
or  fever  be  the  immediate  cause  of  his  death,  yet,  this  is  murder  or 
manslaughter  in  him  that  gave  the  stroke  or  wound,  for  that  wound, 
though  it  were  not  the  immediate  cause  of  death,  yet,  if  it  were  the 
mediate  cause  thereof,  and  the  fever  or  gangrene  was  the  immediate 
cause  of  his  death,  3'et  the  wound  was  the  cause  of  the  gangrene  or 
fever,  and  so  consequently  is  causa  caiisati."  In  Rew's  case,  as 
stated  in  1  East  P.  C.  c.  5,  §  113,  it  was  determined  tliat  "though 
the  stroke  were  not  so  mortal  in  itself  but  that  with  good  care  and 
under  favorable  circumstances  the  party  might  have  recovered,  yet  if 
it  were  such  from  whence  danger  might  ensue,  and  the  party  neglected 
it,  or  applied  inefficacious  medicines,  whereby  the  wound  which  at  first 
was  not  mortal  in  itself  turned  to  a  gangrene,  or  produced  a  fever, 
whereof  he  died,  the  party  striking  shall  answer  for  it,  being  the 
mediate  cause  of  the  death."  J.  Kel.  26.  So,  in  a  more  recent  case, 
the  jur}^  were  instructed  that  if  the  defendant  wilfully  and  without 
justifiable  cause  inflicted  a  wound,  which  was  ultimately  the  cause  of 
death,  it  made  no  difference  whether  the  wound  was  in  its  nature 
instantly  mortal,  or  whether  it  became  the  cause  of  death  by  reason 
of  the  deceased  not. having  adopted  the  best  mode  of  treatment.  The 
real  question  is,  was  the  wound  the  cause  of  death.  Regina  v.  Holland, 
2  M.  «fe  Rob.  351.  From  these  and  other  autliorities,  the  well  estab- 
lished rule  of  the  common  law  would  seem  to  be,  that  if  the  wound  was 
a  dangerous  wound,  that  is,  calculated  to  endanger  or  destroy  life,  and 
death  ensued  therefrom,  it  is  sufficient  proof  of  the  offence  of  murder 
or  manslaughter ;  and  that  the  person  who  inflicted  it  is  responsible, 


332  COMMONWEALTH   V.    IIACKETT.  [CHAP.  III. 

i. 

though  it  may  appear  that  the  deceased  might  have  recovered  if  he  had 
J  taken  proper  care  of  himself,  or  submitted  to  a  surgical  operation,  or 

that  unskilful  or  improper  treatment  aggravated  the  wound  and  con- 
tributed to  the  death,  or  that  death  was  immediately  caused  by  a 
,*-«•  surgical  operation  rendered  necessar}'  by  the  condition  of  the  wound. 
1  Russell  on  Crimes  (7th  Amer.  ed.),  505  ;  Roscoe's  Crim.  Ev.  (3d  ed.) 
703,  70G  ;  3  Greenl.  Ev.§  139  ;  Commonwealth  i'.  Green,  1  Ashm.  289. 
Regina  v.  Haines,  2  Car.  &  Kirw.  368 ;  State  v.  Baker,  1  Jones  Law 
R.  (N.  C.)  267;  Commonwealth  v.  M'Pike,  3  Cush.  184.  The  princi- 
ple on  which  this  rule  is  founded  is  one  of  universal  application,  and 
lies  at  the  foundation  of  all  our  criminal  jurisprudence.  It  is,  that 
ever}'  person  is  to  be  held  to  contemplate  and  to  be  responsible  for  the 
natural  consequences  of  his  own  acts.  If  a  person  inflicts  a  wound 
with  a  deadly  weapon  in  such  manner  as  to  put  life  in  jeopardy,  and 
death  follows  as  a  consequence  of  this  felonious  and  wicked  act,  it 
does  not  alter  its  nature  or  diminish  its  criminalit}'  to  prove  that  other 
causes  cooperated  in  producing  the  fatal  result.  Indeed  it  mav  be 
said  that  neglect  of  the  wound  or  its  unskilful  and  improper  treatment, 
which  were  of  themselves  consequences  of  the  criminal  act,  which 
might  naturally  follow  in  any  case,  must  in  law  be  deemed  to  have 
been  among  those  which  were  in  contemplation  of  the  guilty  party,  and 
for  which  he  is  to  be  held  responsible.  But  however  this  may  be,  it  is 
certain  that  the  rule  of  law,  as  stated  in  the  authorities  above  cited,  has 
its  foundation  in  a  wise  and  sound  policy.  A  different  doctrine  would 
tend  to  give  immunit}'  to  crime,  and  to  take  awa}'  from  human  life 
a  salutary'  and  essential  safeguard.  Amid  the  conflicting  theories  of 
medical  men,  and  the  uncertainties  attendant  on  the  treatment  of 
bodil}'  ailments  and  injuries,  it  would  be  easy  in  man}'  cases  of  homi- 
cide to  raise  a  doubt  as  to  the  immediate  cause  of  death,  and  thereby 
to  open  a  wide  door  by  which  persons  guilty  of  the  highest  crime  might 
escape  conviction  and  punishment. 

The  instructions  to  the  jur}-  at  the  trial  of  this  case  were  in  strict 
conformity  with  the  rule  of  law  as  it  has  always  been  understood  and 
administered.  Indeed  the  learned  counsel  does  not  attempt  to  show 
that  it  has  ever  been  held  otherwise.  His  argument  on  this  point  is 
confined  to  the  signification  whicli  he  attributes  to  the  word  maltreat- 
ment. This  he  assumes  to  be  either  wilful  ill  treatment,  involving  bad 
faith,  of  the  wound  of  the  deceased,  or  such  gross  carelessness  in  its 
management  by  the  surgeons  as  would  amount  to  criminalitj'.  But 
such  is  not  its  true  meaning.  Maltreatment  may  result  either  from 
ignorance,  neglect,  or  wilfulness.  It  is  synonymous  with  bad  treatment, 
and  does  not  imply,  necessarily,  that  the  conduct  of  the  surgeons,  in 
their  treatment  of  the  wounds  of  the  deceased,  was  either  wilfuU}'  or 
grossly  careless.  Nor  was  it  used  in  any  such  narrow  or  restricted 
sense  in  the  instructions  given  to  the  jurj'.  On  the  contrar3%  in  the 
connection  in  which  it  stands,  it  signifies  only  improper  or  unskilful 
treatment,  and  was  intended  to  apply  to  the  evidence  as  it  was 
developed  f.t  the  trial.  Uxd-ptt'ovf;  overruled. 


SECT,  v.]  PEOPLE    V.    COOK.  333 

PEOPLE  V.  COOK. 

b'trpREME  Court  of  Michigan.     1878. 

[Reported  39  Mich.  236.] 

Marston,  J.^  .  .  .  The  ninth  request  was  not  given.  This  request 
was  based  upon  a  theory  that  where  a  mortal  wound  has  been  given,  but 
the  death  is  actual!}'  produced  by  morphine  administered  by  the  hand 
of  another,  there  must  be  an  acquittal.  The  State  v.  Scates,  5  Jones 
(N.  C),  420,  was  relied  upon  as  an  authority  in  support  of  this  prop- 
osition. In  that  case  the  jury  was  charged  that  if  one  person  inflicts  a 
mortal  wound,  and  before  the  assailed  person  dies,  another  person  kills 
him  by  an  independent  act,  the  former  is  guilty  of  murder,  and  this  was 
held  error. 

This  case  does  not,  however,  come  within  the  principle  of  that  case. 
Here  a  mortal  wound  was  given.  Physicians  were  called  in  who  pre- 
scribed for  and  treated  the  wounded  man.  Morphine  was  administered,  /  ... 
and,  it  is  claimed,  in  such  unreasonably  large  quantities  that  it  caused 
death.  It  was  not  claimed  that  these  physicians  were  deficient  in 
medical  skill,  or  that  morphine  in  proper  quantities,  and  at  proper^_£^»j 
times,  should  not  have  been  administered,  or  that  the  deceased  could, 
under  any  treatment,  or  in  the  absence  of  all  treatment,  have  survived. 
Admitting  the  correctness  of  the  authority  relied  upon,  what  applica- 
tion can  such  a  rule  have  to  cases  like  the  present?  If  death  was 
actually  produced   by  morphine,   can  it  be  said  in  view  of  the  facts  H?>'V^ 

*'that  another  person   killed  the  deceased  by   an  independent  act?"  • 

Here   morphine  was  administered   as  a  medicine  by  competent  and  L^ 

skilful  physicians ;  it  was  a  proper  and  appropriate  medicine  to  be 
given.  Was  it  the  independent  act  of  the  physicians  who  prescribed, 
or  of  the  nurses  who  administered  the  morphine  ?  Was  it  the  mortal 
wound  likel}'  to  cause  death  at  any  moment,  or  an  undue  quantity  of 
medicine  unskilfullv  but  honestly  given  to  alleviate  suffering,  which 
actually  caused  death?  Were  the  last  powders,  which  constituted  the 
overdose,  given  during  the  dying  man's  last  moments,  or  so  recently 
before  death  that  the}'  could  not  have  caused  it  or  materially  con- 
tributed thereto?  How,  under  the  conflicting  theories  and  uncertainties 
which  would  inevitably  arise  in  such  a  case,  could  it  be  said  which  was 
the  real  cause?  Could  it  be  made  to  appear  with  clearness  and  cer- 
tainty that  not  the  wound,  but  the  medicines  administered  were  the  sole 
cause  of  the  death?  There  are  authorities  which  hold  that  the  burthen 
of  so  proving  would  rest  upon  the  accused,  in  cases  where  the  wound 
was  not  a  mortal  one.  The  position  which  counsel  seeks  to  establish 
amounts  to  this  :  that  if  a  competent  physician  and  surgeon  in  the 
treatment  of  a  mortal  wound  directly  causes  death,  although  hastened 

^  Only  so  much  of  the  opinion  as  discusses  the  question  of  causation  is  given.  —  Ed 


334  BUSH   V.   COMMONWEALTH.  [CHAP.  III. 

by  never  so  short  a  i^eriod,  the  assailant  is  excused,  even  although 
death  would  inevitably  have  resulted  from  the  wound  under  any  or  in 
the  absence  of  all  treatment.  Such  is  not  the  law.  Neglect  or  mis- 
treatment, and  beyond  such  this  case  does  not  go,  will  not  excuse, 
except  in  cases  where  doubt  exists  as  to  the  character  of  the  wound. 
Where  death  results  in  a  case  like  the  present,  it  can  in  no  proper  or 
legal  sense  be  said  to  be  the  independent  act  of  a  third  person.  In  a 
case  where  the  wound  is  not  mortal,  the  injured  person  may  recover, 
and  thus  no  homicide  have  been  committed.  If,  however,  death  do 
result,  the  accused  will  be  held  responsible,  unless  it  was  occasioned, 
not  b}'  the  wound,  but  by  grossl}'  erroneous  medical  treatment.  But 
where  the  wound  is  a  mortal  one,  there  is  no  chance  for  the  injured 
person  to  recover,  and  therefore  the  reason  which  permits  the  showing 
of  death  from  medical  treatment  does  not  exist.  State  v.  Corbett,  1 
Jones  (Law),  267;  State  v.  Morphy,  33  la.  270:  11  Amer.  122,  note 
and  cases  cited  ;  Roscoe's  Crim.  Ev.  717. 


BUSH  V.  COMMONWEALTH. 
Court  of  Appeals  of  Kentucky.     1880. 

[Reported  78  Ky.  268.] 

HiNES,  J.^  .  .  .  The  following  instruction  is  also  objected  to,  to  wit : 
"  If  the  jury  believe  from  the  evidence,  beyond  a  reasonable  doubt,  that 
the  defendant,  John  Bush,  in  Fayette  county,  and  before  the  finding  of 
the  indictment,  wilfully  shot  Annie  Vanraeter  with  a  pistol,  and  that 
she  died  from  the  effects  of  the  wound  then  inflicted  upon  her,  whether 
said  wound  was  the  sole  cause  or  was  a  contributory  agency  in  pro- 
ducing death,  when  such  shooting  was  not  necessary,  and  not  reason- 
ably believed  by  the  defendant  to  be  necessary  for  his  own  protection 
from  immediate  death  or  great  bodily  harm  then  threatening  him,  the 
jury  should  find  the  defendant  guilty  :  guilty  of  murder  if  the  killing 
were  also  done  with  malice  aforethought,  or  guilty  of  manslaughter  if  the 
killing  were  done  in  sudden  heat  and  passion,  and  without  malice." 

It  is  proper  in  this  connection  to  state  that  the  evidence  was  such  as 
to  justify  the  jury  in  finding  that  the  wound  inflicted  bj'  the  shot  was 
neither  necessarilv  nor  probably  mortal,  and  tliat  the  death  ensued,  not 
from  the  wound,  but  from  scarlet  fever,  negligentl}'  communicated  by 
the  attending  phvsician. 

As  said  in  Commonwealth  v.  Hackett  (2  Allen,  141),  the  rule  of  the 
common  law  would  seem  to  be,  that  if  the  wound  was  a  dangerous 
wound,  that  is,  calculated  to  endanger  or  destroy  life,  and  death  ensued 
therefrom,  it  is  suflBcient  proof  of  murder  or  manslaughter;  and  that 

1  Only  80  much  of  the  opinion  as  discusses  the  question  of  causation  is  given.  —  Ed. 


SECT,  V.l  BUSH    V.    COMMONWEALTH.  335 

-■  i 

the  person  who  inflicted  it  is  responsible,  though  it  may  appear  that 
the  deceased  might  have  recovered  if  he  had  taken  proper  care  of  him- 
self, or  submitted  to  a  surgical  operation,  or  that  unskilful  or  improper 
treatment  aggravated  the  wound  and  contributed  to  the  death,  or  that 
death  was  immediately  caused  b}-  a  surgical  operation  rendered  neces- 
sary by  the  condition  of  the  wound.  The  principle  on  which  this  rule 
is  founded  is  that  every  one  is  held  to  contemplate  and  to  be  responsi-  ^ 

ble  for  the  natural  consequences  of  his  own  acts.  But  if  the  wound  is 
not  dangerous  in  itself  and  death  results  from  improper  treatment,  or 
from  disease  subsequently  contracted,  not  superinduced  by  or  resulting 
from  the  wound,  the  accused  is  not  guilty.  (1  Hale's  P.  C.  428 ;  Par- 
sons V.  State,  21  Ala.  301.)  When  the  disease  is  a  consequence  of  the 
wound,  although  the  proximate  cause  of  the  death,  the  person  inflicting 
the  wound  is  guilty,  because  the  death  can  be  traced  as  a  result  natu- 
rally flowing  from  the  wound  and  coming  in  the  natural  order  of  things  ; 
but  when  there  is  a  supervening  cause,  not  naturally  intervening  by 
reason  of  the  wound  and  not  produced  by  any  necessity  created  by  the 
wound,  the  death  is  by  the  visitation  of  Providence  and  not  from  the 
act  of  the  party  inflicting  the  wound.  In  the  case  under  consideration, 
the  fever  was  not  the  natural  consequence  of  the  wound,  nor  was  it 
produced  by  an}"  necessity  created  by  the  infliction  of  the  wound.  It  did 
not  render  it  necessary  to  have  the  wound  treated  by  a  physician  just 
recovering  from  the  scarlet  fever,  even  if  it  be  conceded  that  medical 
treatment  was  necessary  at  all.  If  the  death  was  not  connected  with 
the  wound  in  the  regular  chain  of  causes  and  consequences,  there 
ought  not  to  be  any  responsibility.  If  a  new  and  wholly  independent 
instrumentality  interposed  and  produced  death,  it  cannot  be  said  that 
the  wound  was  the  natural  or  proximate  cause  of  the  death.  (14 
Grattan,  601,  Livingston  v.  Commonwealth.)  This  view  of  the  law 
was  not  so  presented  to  the  jury  as  to  give  the  appellant  its  full  benefit. 
It  should  have  been  clearly  and  definitely  presented  to  the  jury  that  if 
they  believed  from  the  evidence  that  death  would  not  have  resulted 
from  the  wound  but  for  the  intervention  of  the  disease,  they  should  not 
find  the  accused  guilty  of  murder  or  manslaughter,  but  that  they  might 
find  him  guilty  of  wilfully  and  maliciously  shooting  and  wounding  under 
section  2,  article  6,  chapter  29,  General  Statutes  ;  or  of  shooting  and 
wounding  in  sudden  affray,  or  in  sudden  heat  and  passion,  without 
malice,  under  section  1,  article  17,  chapter  29,  General  Statutes. 


336      THOMPSON'   V.   LOUISVILLE    A    NASHVILLE   E.    R.    CO.       [CHAP.  III. 


THOMPSON  V.  LOUISVILLE  &  NASHVILLE  RAILROAD  CO. 
Supreme  Court  of  Alabama,  1890. 

[Reported  91  Ala.  496.] 

Coleman,  J.  The  suit  is  brought  to  recover  damages  for  injuries 
alleged  to  have  been  wrongfully  inflicted  by  the  defendant  on  J.  R. 
Thomas,  an  employee,  on  the  22d  day  of  September,  1889,  and  from 
which,  it  is  charged,  the  death  of  said  employee  resulted  on  the  29th 
September,  1889.  The  section  of  the  code  (section  2591)  under  which 
this  suit  is  brought  pro\'ides  that  the  personal  representative  may 
sue  if  such  injury  "results"  in  the  death  of  the  servant  or  employee. 
The  section  so  often  construed  by  this  court  provides  that  the  suit 
may  be  brought  by  the  representative  to  recover  damages  for  the  in- 
jury, whereby  the  death  was  "caused."  Code,  §2589.  "Cause"  is 
that  which  produces  an  effect.  "Result"  is  the  effect  of  one  or  more 
concurrent  causes.  The  same  principles  of  law  are  alike  applicable  in 
either  case.  The  testimony  of  skillful  physicians  tended  to  show  that 
the  injury  inflicted  was  mortal,  and  the  injured  party  would  have 
died  from  the  effects  of  the  injury  "in  a  short  time."  There  was  evi- 
dence also  tending  to  show  the  wounds  were  not  "  necessarily  mortal." 
The  e\ddence  showed  that  by  mistake  the  wife  of  the  deceased,  who  was 
his  nurse,  gave  to  him  internally  four  or  five  grains  of  corrosive  sub- 
limate, which  had  been  left  by  the  physician  to  be  used  as  a  wash, 
and  not  to  be  given  internally.  It  was  proven  that  the  poison  would 
have  caused  the  death  of  a  well  person,  and  it  was  in  e\"idence  that  the 
poison  was  the  immediate  cause  of  death.  The  testimony  of  the  phy- 
sicians further  tended  to  show  the  v/ound  was  of  such  a  character 
"that  it  may  have  hastened  the  death";  "may  have  caused  him  to 
die  sooner  from  the  effects  of  the  corrosive  sublimate  than  if  he  had 
not  received  the  wound";  "that  the  corrosive  sublimate  adminis- 
tered to  Thomas  would  have  produced  death  'quicker'  in  a  man  in 
Thomas'  condition  from  the  wounds  received  by  him,  than  in  a  well 
man."  Among  others,  the  court  charged  the  jury  that,  under  the  e\'i- 
dence  in  this  case,  the  death  of  plaintift"s  intestate  must  have  resulted 
either  from  the  injury  he  received  or  from  the  poison  he  took.  The 
injury  and  poison  cannot  both  be  the  cause  of  his  death.  Further,  that 
his  death  could  not  be  the  result  of  the  injury,  and,  at  the  same  time, 
the  result  of  the  poison.  Further,  that  if  he  died  from  the  effects  of 
the  poison,  then  they  must  find  for  the  defendant,  although  his  death 
was  accelerated  by  reason  of  the  injury  received;  or  if  he  died  "sooner" 
from  the  effects  of  the  poison  than  he  would  have  died,  if  he  had  not 
been  injured. 


SECT,  v.]      THOMPSON    V.   LOUISVILLE    &   NASHVILLE    R.    E.    CO.  337 

In  the  case  of  Railroad  Co.  v.  Jones,  83  Ala.  376,  3  South.  Rep.  902, 
the  court  declared  that  although  Mrs.  Jones  had  pneumonia,  from 
which  she  would  ultimately  have  died,  yet,  if  the  injury  caused  l)y  the 
negligence  of  the  railroad,  under  the  rules  above  declared,  contributed 
and  hastened  her  death,  the  corporation  would  not  be  guiltless.  "  That 
the  railroad  would  not  be  exempt  from  liability  for  such  an  injury 
unless  her  death  was  solely  the  result  of  bad  health."  It  does  not  fol- 
low that,  because  a  man  cannot  die  but  once,  there  cannot  be  two  or 
more  concurrent,  codperative,  and  efficient  causes  to  effect  the  one 
killing.  A  person  may  be  killed  by  "beating  and  star\ang."  There 
may  be  contributing  causes.  3  Greenl.  Ev.,  §  141.  If,  as  the  testi- 
mony tended  to  show,  the  injury  received  was  mortal,  and  caused  de- 
cedent to  die  "sooner"  or  "quicker"  from  the  effects  of  the  poison  than 
he  would  have  died  had  he  not  been  injured,  it  is  difficult  to  perceive 
how  the  poison  can  be  regarded  as  the  "sole"  cause  of  his  death  at  the 
time  it  occurred.  If  he  would  have  lived  longer  without  the  injury 
than  with  the  injury,  the  injury  necessarily  contributed  to  and  ac- 
celerated his  death,  and  was  a  part  of  the  cause,  causing  death  at  the 
time  it  occurred.  It  is  not  intended  by  the  court  to  assert  the  doctrine 
that,  if  a  party  inflict  an  injury  not  mortal,  and,  by  the  intervention 
of  other  causes,  death  results,  the  party  inflicting  the  injury  in  all  cases 
shall  be  held  responsible  for  the  death.  The  first  cause  may  or  may  not 
be  regarded  as  the  proximate  cause  of  a  result  according  to  the  facts  of 
the  case.  Bowles  v.  State,  58  Ala.  338,  and  authorities  cited;  2  Bish. 
Crim.  Law,  §  668;  1  Shear.  &  R.  Neg.,  §  125;  Insurance  Co.  v.  Tweed, 
7  Wall.  44;  Railroad  Co.  v.  Kellogg,  94  U.  S.  469;  and  many  others. 
Railroad  Co.  v.  Buck,  49  Amer.  Rep.  170;  Railway  Co.  v.  Kemp,  48 
Amer.  Rep.  136;  Scheffer  v.  Railroad  Co.,  105  U.  S.  249.  The  court 
ought  not  to  have  charged  the  jury,  as  a  conclusion  of  law,  that  death 
did  not  and  could  not  have  resulted  from  both  causes,  the  injury  and 
the  poison,  in  the  face  of  the  testimony  of  the  physicians  examined 
as  witnesses  to  the  effect  that  the  death  of  the  decedent  was  "  acceler- 
ated" by  the  injury,  or  that  the  injury  may  have  caused  him  to  die 
"quicker"  than  he  would  have  died  without  the  injury.  The  charges 
of  the  court  assert  the  further  proposition  that,  though  the  injury 
inflicted  was  fatal,  yet  if,  before  death,  the  poison  was  given,  and  was 
sufficient  to  cause  death,  and  was  the  immediate  cause  of  death,  the 
poison  must  be  regarded  as  the  proximate  cause,  and  the  jury  must  find 
for  the  defendant.  To  support  this  charge,  the  follo\\'ing  proposition 
of  law  is  cited,  and  many  authorities  and  illustrations  of  the  principle 
are  given :  "  That  if  a  new  force  or  power  intervenes,  sufficient  of  itself 
to  stand  as  the  cause  of  the  misfortune,  the  other  must  be  considered 
as  too  remote."  We  concede  the  correctness  of  the  proposition, 
and  its  general  acceptance,  but  do  not  concede  its  applicability  to  a 
case  like  the  present.  When  the  ex-idence  shows  that  the  result  was 
not  the  probable  or  legitimate  result  of  the  first  cause,  and  might  not 


338      THOMPSON    V.   LOUISVILLE    &   NASHVILLE    K.  K.    CO.      [CHAP.  III. 

have  resulted,  but  for  some  new,  intervening  cause,  or  this  is  a  matter  of 
contest,  in  such  cases,  the  intervening  cause  may  be  regarded  as  the 
proximate  cause,  and  the  first  as  too  remote;  but  we  have  been  cited 
to  no  authority  in  a  suit  for  the  recovery  of  damages,  where  it  was 
shown  that,  if  the  "result"  was  the  necessary  and  ine"vitable  effect 
of  a  first  cause,  and  a  new  independent  force  intervened  sufficient  of 
itself  to  produce  the  effect,  and  only  hastened  the  result,  the  first  cause 
was  held  to  be  too  remote.  In  such  cases  both  causes  necessarily  con- 
tribute to  the  result.  The  difference  may  be  illustrated  in  the  well- 
known  case  of  the  squib,  cited  by  counsel.  Scott  v.  Shepherd,  2  W. 
Bl.  892.  If  the  person  who  first  threw  the  squib  had  thrown  it  in  a  place 
where  its  explosion  would  have  been  harmless,  and  someone,  with- 
out reason  or  excuse,  had  picked  it  up,  and  started  it  again,  with  the 
injurious  results  that  followed  its  explosion,  tliis  would  have  presented 
a  case  where  the  new  and  intervening  cause  would  have  been  held  the 
proximate  cause,  and  sufficient  to  stand  for  the  misfortune.  A  better 
illustration,  and  more  applicable,  is  that  of  the  chain.  "An  article 
at  the  end  of  a  chain  may  be  moved  by  a  force  applied  at  the  other 
end,  that  force  being  the  proximate  cause."  Railway  Co.  v.  Kellogg, 
94  U.  S.  474.  Suppose  the  force  at  the  other  end  is  not  sufficient  to 
move  the  article,  and  a  new,  independent,  intervening  force  is  applied, 
which  effects  a  removal,  the  new  force  will  be  held  the  proximate  cause. 
But  if  the  original  force  itself  is  sufficient  to  move  the  article,  and  will 
surely  move  it,  and  a  new,  independent  force  intervenes,  sufficient  of 
itself  to  move  the  article,  and  which  in  consequence  of  the  first  force, 
accelerates  or  hastens  the  movement  of  the  article,  the  new-  force 
does  not  "solely"  or  "alone"  produce  the  movement,  but  the  first 
force  is  concurrent  and  cooperates  with  the  new  force,  and  is  a  suffi- 
cient cause.  If  two  persons  wrongfully  block  up  a  street  so  that  one  is 
injured  in  attempting  to  pass,  neither  of  the  culpable  parties  can  excuse 
himself  by  showing  the  wrong  of  the  other,  for  the  injury  is  the  natural 
and  proximate  result  of  his  own  act.  Cooley,  Torts,  p.  79.  If  a  wound 
is  inflicted,  not  dangerous  of  itself,  and  death  was  eiidently  occasioned 
by  grossly  erroneous  treatment,  the  original  author  vdW  not  be  account- 
able; but,  if  the  wound  was  mortal,  the  person  who  inflicted  it  cannot 
shelter  himself  under  the  plea  of  erroneous  treatment.  1  Hale,  P. 
C,  428;  1  East.,  P.  C,  344,  §  113;  Parson  v.  State,  21  Ala.  301.  So,  in 
this  case,  if  the  injury  had  not  been  mortal,  the  poison  would  have 
been  regarded  as  the  proximate  cause,  according  to  the  facts  of  the 
case,  governed  by  other  principles  of  law.  See  Bowles  v.  State, 
58  Ala.  335,  and  authorities  cited,  supra.  But,  if  the  wound  was  mor- 
tal, the  person  who  inflicted  it  cannot  shelter  himself  under  the  plea 
of  a  new,  intervening  cause,  if  it  be  shown  that  the  injury  caused  death 
to  happen  "sooner"  than  it  would  have  happened  without  the  injury. 
If  the  original  WTong  becomes  injurious  only  in  consequence  of  some 
distinct  wrongful   act  or  omission   by   another,   the  injury  shall   be 


SECT,  v.]  KEATON    V.    STATE.  339 

imputed  to  the  last  wrong.  "  But  if  the  original  act  was  WTongful,  and 
would  naturally,  according  to  the  ordinary  course  of  events,  prove  in- 
jurious to  some  other  person,  and  does  actually  result  in  injury,  through 
the  intervention  of  causes  which  are  not  wrongful,  the  injury  shall  be 
referred  to  the  wrongful  cause."  If  damage  has  resulted  directly 
from  concurrent  wrongful  acts  of  two  persons,  each  of  these  acts  may 
be  counted  on  as  the  proximate  cause,  and  the  parties  held  responsible 
jointly  or  severally  for  the  injury.  Cooley,  Torts,  pp.  68,  70,  78.  These 
several  principles  of  law  fully  illustrate  the  distinction  to  be  observed, 
and  the  rules  to  govern  in  the  present  case.  The  principles  of  law  de- 
clared in  the  following  cases,  carried  out  to  their  legitimate  conclusions, 
tend  to  sustain  the  views  here  stated.  Sauter  i\  Railroad  Co.,  66  N.  Y. 
50;  Railroad  Co.  v.  Buck,  49  Amer.  Rep.  168;  Beauchamp  v.  Mining  Co., 
50  Mich.  163,  15  N.  W.  Rep.  65.  The  measure  of  proof  required  by  the 
use  of  the  words  "any  doubt"  in  charge  No.  17  is  too  high,  and,  al- 
though followed  by  explanatory  or  qualif;^ang  words,  the  use  of  the 
word  "proper"  in  the  explanatory  clause  is  misleading.  A  "reasonable 
con\-iction"  is  what  the  law  requires.  Railroad  Co.  v.  Jones,  83  Ala. 
376,  3  South.  Rep.  902;  Wilkinson  v.  Searcy,  76  Ala.  182.  Exemplary 
damages  are  not  recoverable  in  this  action.  See  Railroad  Co.  v.  Orr, 
ante,  360  (at  this  term).  The  complaint,  as  amended,  was  sufficient. 
Reversed  and  remanded. 


KEATON   V.    STATE. 

CouBT  OF  Criminal  Appeals  of  Texas.     1900. 
{Reported  41  Texas,  Cr.  R.  621.  J 

Brooks,  J.  *  .  .  .  The  court,  among  other  things,  charged  the  jury 
as  follows :  "  Unless  you  further  believe  from  the  evidence,  beyond  a 
reasonable  doubt,  that  defendant  Pearce  Keaton  entered  into  a  con- 
spiracy with  Bud  Newman,  Jeff  Taylor,  and  Bill  Taylor,  or  either  of 
them,  to  commit  the  offence  of  robbery,  —  that  is,  to  rob  the  express 
company  on  the  Gulf,  Colorado  &  Santa  Fe  Railway  Company's  road  at 
Coleman  Junction,  —  and  agreed  among  themselves  as  to  the  part  each 
was  to  perform  in  the  said  enterprise  of  robbery,  and  that  in  pursuance 
of  said  agreement  and  conspiracy  defendant,  with  the  said  parties 
named,  or  either  one  of  them,  did  go  to  Coleman  Junction,  and  that  said 
Coleman  Junction  was  and  is  in  Coleman  County,  Texas,  and  did  then 
and  there,  in  pursuance  of  said  conspiracy,  attempt  to  commit  and  per- 
petrate the  crime  of  robbery,  and  for  the  purpose  of  accom[)lishing  said 
robl>ery,  and  for  the  purpose  of  aiding  and  assisting  in  its  perpetration, 
the  defendant  either  alone  or  acting  together  with  said  Newman  and 
Jeff  and  Bill  Taylor,  or  either  one  of  them,  with  force  and  arms,  and 

:■'      ■  >  -'ir,!-!!  oi  tlie  case  as  discusses  t!i>-  uue  mm  ;  o:   t'  .iistri(jij  is  /jiveu. — Ed. 


340  KEATON   V.    STATE.  [CHAP.  Ill 

against  the  consent  of  Lee  Johnson,  and  upon  express  malice,  wilfully 
compelled  the  said  Lee  Johnson  to  leave  a  place  of  safet}-,  if  any,  and 
with  force  and  arms  knowingly  compelled  said  Lee  Johnson  to  go, 
against  his  will,  to  a  place  where,  in  case  of  resistance  and  perpetra- 
tion of  said  offence  of  robbers',  it  was  reasonably  apparent  to  defend- 
ant and  those  acting  with  him  that  said  Lee  Johnson  would  naturally 
and  necessarily  be  exposed  to  death,  and  likely  lose  his  life  ;  and  j-ou 
further  believe  that,  knowing  these  natural,  proliable,  and  necessary 
consequences,  if  anV;  defendant  or  any  other  person,  if  any,  acting  with 
him.  so  compelled  said  Lee  Johnson  to  be  in  such  position,  and  that  the 
placing  of  said  Lee  Johnson  in  such  position,  if  any,  was  in  pursuance 
of  said  conspiracy  to  rob,  if  an}',  and  in  furtherance  and  in  aid  thereof, 
and  that  while  in  said  position  R.  E.  Buchanan,  in  resistance  to  the 
perpetration  of  said  attempted  robbery,  if  any,  did  innocentlj-  shoot 
and  kill  said  Lee  Johnson  on  or  about  the  9th  day  of  June,  1898,  in 
Coleman  County,  Texas,  not  intending  to  do  so,  but  actually  intending 
to  kill  the  parties  attempting  to  perpetrate  said  robbery,  if  any,  and 
that  said  killing  was  caused  and  directly  brought  about  by  the  acts  of 
defendant,  or  those  acting  with  him,  if  anv,  in  so  compelling  said  Lee 
Johnson  to  be  and  remain  in  said  position,  —  then  you  are  instructed 
the  defendant  would  be  guilty  of  murder  in  the  first  degree,  and  you 
will  so  find  in  your  verdict,  and  assess  the  punishment,  as  hereinbefore 
instructed.  If  you  do  not  so  believe,  you  will  acquit."  We  think  the 
above-copied  charge  ver}'  clearly  presents  the  law  applicable  to  the 
facts.  Article  77,  Penal  Code,  provides  :  "  If  any  one,  by  employing  a 
child  or  other  person  who  cannot  t)e  punished  to  commit  an  offence, 
or  by  any  means  such  as  laying  poison  where  it  may  be  taken,  and 
with  intent  that  it  shall  be  taken,  or  by  preparing  an}'  other 
means  by  which  a  person  may  injure  himself,  and  with  intent  that 
such  person  shall  thereby  be  injured,  or  by  any  other  indirect  means 
cause  another  to  receive  an  injury  to  his  person  or  property,  the 
offender  by  the  use  of  such  indirect  means  becomes  a  principal." 
In  Blain  v.  State,  30  Texas  Criminal  Appeals,  702,  Judge  Hurt, 
delivering  the  opinion  of  the  Court,  said:  "Again,  if  a  person 
instigates  or  agrees  with  another  to  commit  a  crime,  and  the  person 
so  instigated  commits  a  crime  ditferent  from,  but  one  likely  to  be 
caused  by  or  become  the  reasonable  result  of,  the  crime  intended, 
the  instigator  is  an  accessory  before  the  fact,  and,  if  present  at  its  com- 
mission, is  a  principal  thereto."  Again,  in  Reddick  v.  Commonwealth 
(Kentucky),  33  Southwestern  Reporter,  417,  the  court  approved  the 
following  chargel  »♦  If  the  jury  believe  from  the  evidence,  to  the  ex- 
clusion of  all  reasonable  doubt,  that  accused  wilfully,  maliciously,  and 
feloniously  set  fire  to  and  burned  the  Miller  Hotel,  then  being  oc- 
cupied by  Mrs.  Masters  as  a  residence,  and  that  by  reason  of  that 
burning  she  lost  her  life,  then  the  jury  should  find  accused  guilty  of 
murder,  although  accused  may  not  have  intended  or  calculated  the 
death  of  Mrs.  Masters  as  the  result  of  such  burnins;."     Commentins: 


SECT,   v.]  ANDREWS   V.    KINSEL.  341 

upon  the  charge,  the  court  say:  "The  instruction,  we  take  it,  em- 
braces a  great  principle  of  law,  and  that  the  same  is  so  uniformly  held 
and  acted  upon  in  all  criminal  prosecutions  as  to  need  no  special 
citation  of  autborities."  Now,  applying  the  principle  laid  down  in  the 
foregoing  authorities  to  the  question  before  us,  we  find  that  appellant, 
together  with  several  others,  went  to  the  scene  of  the  homicide  for  the 
purpose  of  robbing  the  train ;  that  the}'  forced  deceased  to  go  with 
them,  after  stopping  the  train,  down  to  the  door  of  the  express  car, 
having  been  previously  warned  by  the  engineer  that  some  one  would 
probably  commence  shooting  at  tbem  from  the  rear  end  of  the  car, 
where  the  passenger  coaches  were.  Defendant,  in  his  own  statement 
as  quoted  above,  admits  knowledge  of  this,  and  that  the  same  was  com- 
municated to  him  prior  to  the  time  Johnson  was  taken  to  the  express 
car.  Then  certain]}-  he  would  be  responsible  for  the  reasonable,  nat- 
ural, and  probable  result  of  his  act,  to  wit,  placing  deceased  in  a  place 
of  danger,  where  he  would  probably  lose  his  life.  Therefore  we  think 
the  court's  charge  as  above  copied  was  a  clear  and  proper  presentation 
of  the  law  applicable  to  the  facts  upon  the  trial  of  this  case.  Taj'lor  v. 
State.  a?ite,  p.  564. 

We  have  carefully  reviewed  all  of  appellant's  various  assignments, 
and  do  not  think  any  of  them  are  well  taken,  but  will  say,  in  passing, 
we  do  not  think  the  court  erred  in  refusing  to  charge  on  circumstantial 
evidence,  as  strenuously  contended  by  appellant.  There  appearing  no 
error  in  the  record,  the  judgment  is  affirmed. 

Affirmed, 


ANDREWS  V.  KINSEL.  '   ' 

Supreme  Court  of  Georgia,  1901. 

[Reported  114  Ga.  390.] 

Lewis,  J.  Andrews  &  Co.  sued  Kinsel  for  $500  damages,  makinc; 
by  their  petition  substantially  the  following  case:  The  plaintiffs 
rented  from  the  defendant  a  storehouse  in  the  city  of  Columbus,  in 
which  they  transacted  a  mercantile  business ;  and  it  was  the  duty  of  the 
defendant,  as  the  landlord  of  the  plaintiffs,  to  keep  the  premises  in 
good  repair.  The  defendant  also  owned  the  storehouse  adjoining  that 
rented  by  the  plaintiffs,  a  partition  wall  di\ading  the  two  stores.  On 
a  named  day  the  defendant,  by  his  agents  and  servants,  entered  his 
storehouse  adjoining  the  plaintiffs'  place  of  business  for  the  purpose  of 
making  certain  repairs  thereon,  and  in  making  the  repairs  the  partition 
betw^een  the  two  storehouses  was  removed,  or  partly  removed,  leaving 
the  store  of  the  plaintiffs  exposed  and  unprotected;  and  upon  leaving 
the  place  at  night  the  defendant's  agents  and  servants  negligently 
and  carelessly  left  open  two  rear  vnndows  in  the  store  next  to  that  of 


342  ANDREWS   V.   KINSEL.  [CIIAP.  III. 

the  plaintiffs,  thereby  rendering  it  easy  to  effect  an  entrance  into  the 
plaintiffs'  store  through  the  rear  windows  and  the  opening  in  the  parti- 
tion. On  the  night  in  question  a  burglar  or  burglars  did  gain  entrance 
to  the  plaintiffs'  store  in  the  manner  described,  and  steal  from  the 
plaintiffs  a  large  quantity  of  merchandise,  to  their  damage  as  afore- 
said. No  notice  was  given  to  the  plaintiffs  that  the  partition  had  been 
removed  or  that  the  windows  had  been  left  open,  and  this,  also,  is 
alleged  to  have  been  negligence.  The  defendant  filed  a  demurrer  to 
the  petition,  which  was  overruled,  and  he  also  filed  an  answer,  in  which 
he  denied  liability,  and  denied  that  he  had  been  negligent  as  alleged. 
The  case  went  to  trial,  and,  at  the  conclusion  of  the  e\adence  for  the 
plaintiffs,  the  court,  on  motion  of  defendant's  counsel,  granted  a  non- 
suit. To  this  ruling  the  plaintiffs  excepted,  and  the  defendant  filed  a 
cross  bill  of  exceptions  in  which  he  assigned  error  upon  the  overruling 
of  his  demiurer. 

1.  As,  in  our  opinion,  the  court  below  should  have  sustained  the  de- 
murrer fUed  by  the  defendant,  and  the  refusal  to  do  so  was  reversible 
error,  the  \XY\i  of  error  issued  upon  the  main  bill  of  exceptions  will, 
under  the  ruling  of  this  court  in  Rives  v.  Rives,  113  Ga.  392,  be  dis- 
missed. 

2.  It  is  unnecessary  to  argue,  or  to  cite  authorities  to  sustain,  the 
well-settled  legal  principle  that,  to  enable  one  to  recover  for  damages 
resulting  from  the  negligent  conduct  of  another,  it  must  appear  that 
the  negligence  of  the  defendant  was  the  proximate  cause  of  the  injury 
sustained.  It  is  also  a  well-recognized  principle  that  where  there 
has  intervened  between  the  defendant's  negligent  act  and  the  injury 
an  independent  illegal  act  of  a  third  person,  producing  the  injury, 
and  without  which  it  would  not  have  happened,  the  latter  is  properly^^ 
held  the  proximate  cause  of  the  injury,  and  the  defendant  is  excused. 
8  Am.  &  Eng.  Enc.  Law  (2d  ed.)  580.  As  is  stated  in  1  Shear.  & 
R.  Neg.  (5th  ed.)  §  25,  "The  defendant's  negligence  may  put  a  temp- 
tation in  the  way  of  another  person  to  commit  a  wrongful  act  by 
which  the  plaintiff  is  injured,  and  yet  the  defendant's  negligence  may 
be  in  no  sense  a  cause  of  the  injury."  Thus,  in  Tennessee,  a  defendant 
was  held  not  liable  for  the  negligent  failure  to  keep  a  night  watchman  on 
guard  over  the  property  of  the  plaintiff,  as  a  result  of  which  an  incen- 
diary set  fire  to  the  property.  State  v.  Ward,  9  Heisk.  133.  In  New 
York  it  is  held  that  the  relation  of  cause  and  effect  between  the  negli- 
gence of  the  defendant  and  the  injury  to  the  plaintiff  cannot  be  made 
out  by  including  the  independent  illegal  acts  of  third  persons,  and  that 
the  defendant  cannot  be  made  accountable  for  the  unauthorized  il- 
legal acts  of  other  persons,  although  his  own  conduct  may  have  in- 
directly induced  or  incited  the  commission  of  the  acts.  Olmstead  v. 
Brown,  12  Barb.  662.  And  in  Grain  v.  Petrie,  6  Hill,  524,  the  following 
language  is  used :  "  To  maintain  a  claim  for  special  damages,  they  must 
appear  to  be  the  legal  and  natural  consequences  arising  from  the 


SECT,  v.]  HENDERSON   V.    DADE    COAL   CO.  343 

tort,  and  not  from  the  wrongful  act  of  a  third  party  remotely  induced 
thereby."  See,  also,  Shugart  v.  Egan,  83  111.  56;  Bosworth  r.  Brand, 
1  Dana,  377;  Carpenter  v.  Railroad  Co.,  13  App.  Div.  328,  43  N.  Y. 
Supp.  203.  This  principle  is  also  well  established  in  Georgia  by  the 
cases  of  Belding  v.  Johnson,  86  Ga.  177,  and  Henderson  v.  Coal  Co., 
100  Ga.  568.  In  the  former  case  it  was  held  that  a  widow  could  not 
recover  damages  of  a  barkeeper  for  the  homicide  of  her  husband, 
who  was  killed  in  an  encounter  with  a  third  person;  the  quarrel  leading 
up  to  the  encounter  having  been  the  result  of  intoxication  produced  by 
liquor  illegally  sold  to  the  slayer  of  plaintiff's  husband  by  the  barkeeper. 
In  the  Henderson  Case  the  lessee  of  a  convict  was  held  not  liable  for 
the  criminal  act  of  the  convict,  by  which  a  third  party  suffered  damage, 
although  the  lessee  negligently  placed  it  in  the  power  of  the  con\nct 
to  commit  the  crime.  These  cases,  it  will  be  seen,  are  closely  in  point. 
The  rule  is  aptly  and  rather  quaintly  stated  in  Whart.  Neg.  (2d  ed.) 
§  134,  in  the  following  language:  "I  am  negligent  on  a  particular  sub- 
ject-matter as  to  which  I  am  not  contractually  bound.  Another  per-  \ 
son,  mo\ang  independently,  comes  in  and  either  negligently  or  mali- 
ciously so  acts  as  to  make  my  negligence  injurious  to  a  third  person.  If 
so,  the  person  so  intervening  acts  as  a  non-conductor,  and  insulates 
my  negligence,  so  that  I  cannot  be  sued  for  the  mischief  which  the 
person  so  intervening  directly  produces."  Apphang  these  principles 
to  the  case  now  before  us,  it  is  manifest  that  the  plaintiffs  did  not  make 
out  a  cause  of  action  by  their  petition.  Granting  as  true  all  of  their 
allegations  as  to  the  negligence  of  the  defendant,  it  is  also  true,  upon 
the  face  of  their  pleadings,  that  there  intervened  as  a  direct  cause  be- 
tween the  negligence  of  the  defendant  and  the  damage  sustained  by 
themselves  the  independent  criminal  act  of  a  responsible  human  agency. 
The  demurrer  to  the  petition  should  have  been  sustained. 

Writ  of  error  on  main  bill  of  exceptions  dismissed.     Judgment  on 
cross  bill  reversed.      All  the  justices  concurring. 


HENDERSON  v.  DADE  COAL  CO. 
Supreme  Court  of  Georgia,  1897. 

[Reported  100  Ga.  568.] 

Lumpkin,  P.  J.  The  declaration  now  under  re\new  discloses  one  of 
the  very  saddest  cases  with  which  it  has  ever  been  our  fortune  to  deal. 
The  plaintiff,  Miss  Maggie  Henderson,  was,  at  the  hands  of  a  brutal 
convict,  subjected  to  injury,  wrong,  and  agony,  both  mental  and  phy- 
sical, a  recital  of  which  would  make  one  of  the  darkest  pages  in  our 
reports.    Every  member  of  this  bench  was  deeply  moved  and  affected 


344  HENDERSON    V.   DADE    COAL   CO.  [CHAP.  III. 

by  the  account  which  the  declaration  gives  of  her  blighted  life.  There 
is  not,  perhaps,  in  the  annals  of  litigation,  a  story  of  wrong  which  ap- 
peals more  pathetically  for  human  sympathy.  Were  we  to  follow  the 
instincts  of  our  hearts,  we  would  be  under  the  strongest  impulse  to  sus- 
tain the  plaintiff's  action;  but  as  magistrates,  under  the  solemn  duty 
of  enforcing  what  we  conscientiously  believe  to  be  the  law  of  the  case, 
we  are  compelled  to  hold  that  the  trial  court  did  not  err  in  sustaining 
the  various  demurrers  alleging  that  no  cause  of  action  was  set  forth. 
Omitting  any  mention  of  numerous  questions  the  decision  of  which  is 
not,  in  the  \aew  we  take  of  the  case,  in  the  least  degree  essential  to  its 
determination,  we  shall  confine  ourselves  to  a  very  brief  discussion  of 
the  propositions  announced  in  the  headnotes,  from  which  the  nature 
of  the  case,  so  far  as  now  material,  will  be  readily  apprehended.  The 
case,  at  last,  depends  upon  the  question,  whether  the  custodians  of 
such  a  comnct  as  is  described  in  the  third  headnote  are  legally  respon- 
sible in  damages  for  the  consequences  of  crimes  committed  by  him  while 
at  large,  and  in  the  unrestrained  control  of  his  own  movements,  by  their 
permission,  or  because  of  their  negligence  in  failing  to  keep  him  safely 
confined.!  We  have  no  doubt  that,  as  a  general  rule,  a  criminal  tort 
committed  by  such  a  convict  would  be  too  remote  a  consequence  of 
his  keepers'  misconduct  in  the  premises  to  render  them  responsible  to 
the  person  injured.  While  cases  may  arise  in  which  this  general  rule 
should  be  varied  —  as  where  it  appears  that  the  custodians  of  the  con- 
\'ict  were  in  some  way  connected  ^dth  the  perpetration  of  the  tort, 
or  had  reasonable  grounds  for  apprehending  that  it  would  be  commit- 
ted —  nothing  is  alleged  in  the  present  declaration  to  bring  this  case 
within  such  an  exception.  The  direct  and  proximate  cause  of  the  in- 
juries inflicted  upon  Miss  Henderson  was  the  independent  action  of 
the  con\-ict  himself.  He,  though  x-icious,  brutal,  and  infamous,  was 
nevertheless  an  accountable  human  agent.  While,  according  to  the 
plaintiff's  averments,  he  was  not  restrained  by  any  con\'ictions  of 
right  and  wTong,  nor  governed  by  any  principles  of  moraUty,  the 
declaration  does  not  attempt  to  allege  that  he  was  not  a  rational 
person,  fully  amenable  to  the  laws  both  of  God  and  of  man.    That  he 

1  That  a  "felony"  convict,  about  thirty-seven  years  old,  who  had  been  continu- 
ously in  the  penitentiary  for  about  twelve  years  and  who  had  five  times  escaped 
therefrom,  was  "a  man  in  robust  and  vigorous  health,'  immoral,  brutish,  devilish, 
of  vicious  habits,  of  violent  passions,  prone  to  desire  for  sexual  intercourse,"  and  a 
person  "  not  restrained  by  any  convictions  of  right  and  wrong,  or  governed  by  any 
principles  of  morality,"  and  that  "all  of  these  conditions  and  things"  concerning 
him  "were  well  known  and  were  understood"  by  his  custodians,  "or  ought  to  have 
been,  because  of  what  they  knew  of  his  said  person,  history,  character  and  surround- 
ings," did  not,  without  more,  afford  such  cause  for  apprehending  that  he  would,  when 
an  opportunity  occurred,  commit  the  crime  of  rape  upon  an  unprotected  woman,  as 
to  subject  his  custodians  to  liability  in  damages  for  the  perpetration  by  him  of  this 
offense  at  a  time  when,  because  of  their  fault,  he  was  at  large  and  in  the  unrestrained 
control  of  his  own  movements. 


SECT,    v.]  HENDERSON    V.    DADE    COAL   CO.  345 

was  prone  to  a  desire  for  sexual  intercourse  did  not,  by  any  means, 
render  him  an  exception  to  a  law  of  nature  which  universally  pre- 
vails in  the  animal  kingdom,  whether  as  applied  to  human  beings  or 
animals  of  lower  orders.  Vile  as  this  man  was,  it  cannot  be  held  that 
the  defendants  could  reasonably  have  anticipated  that  he  would, 
upon  the  first  opportunity,  assault  and  ra\'ish  any  defenseless  woman 
whom  he  might  encounter.  He  was  equally  liable  to  commit  some  other 
heinous  crime;  and  they  were  not  bound  to  presume  that  he  would 
commit  any  crime  at  all.  The  State  requires  the  lessees  of  con\acts,  at 
the  expiration  of  their  terms,  to  furnish  them  transportation  to  the 
counties  in  which  they  were  con\ncted.  Thus  the  law  clearly  contem- 
plates that  these  criminals  shall  be  set  at  liberty  in  the  very  com- 
munities whence  they  came.  It  can  hardly  be  questioned  that  scores, 
perhaps  hundreds,  of  con\-icts,  just  as  bad  as  the  one  now  under  consid- 
eration, are,  from  time  to  time,  set  at  large  by  the  law's  command. 
If  there  was  reason  to  apprehend  that  con\acts  of  this  depraved  t^^^pe 
would,  upon  regaining  their  liberty,  commit  such  crimes  as  that  com- 
plained of  in  the  present  case,  it  would  seem  that  the  true  policy  of  the 
law  would  be  to  keep  them  imprisoned  during  their  lives.  That  such 
is  not  the  policy  of  the  law  is  due  to  the  fact  that  reason  for  apprehend- 
ing such  outrages  does  not  really  exist. 

The  true  rule  applicable  in  a  case  like  the  present  was  recognized 
and  stated  by  this  court  in  the  case  of  Perry  v.  Railroad,  66  Ga.  751, 
wherein  it  was  said  that,  in  order  to  entitle  a  party  to  recover  damages 
on  account  of  the  negligence  of  another,  it  should  appear  that  the 
damages  were  the  natural  and  proximate  result  of  such  negligence; 
"for,  should  it  appear  that,  but  for  the  intervention  of  a  responsible 
third  party,  the  defendant's  negligence  would  not  have  caused  damage 
to  the  plaintiff,  then  the  defendant  is  not  liable  to  plaintiff,  for  the 
reason  that  the  causal  connection  betw^een  negligence  and  damage  is 
broken  by  the  interposition  of  an  independent,  responsible  human 
action."  In  support  of  this  doctrine,  Judge  Stewart,  who  presided 
in  the  place  of  Chief  Justice  Jackson,  disqualified,  cited  Field,  Dam., 
§§  13,  32,  52,  53,  78;  Wayne,  Dam.,  §  25;  Whart.  Neg.,  §  134;  Wait, 
Act.  &  Def .  tit.  "  Damages."  It  is  true  that  in  the  case  just  cited  the 
action  was  based  upon  a  tort  of  an  altogether  different  character, 
but  the  principle  announced  controls  the  case  at  bar.  The  case  of  Beld- 
ing  V.  Johnson,  86  Ga.  177,  also  has  some  bearing  upon  the  question 
at  issue,  it  being  there  held  that  the  death  of  the  plaintiff's  husband, 
who  was  killed  by  a  man  under  the  influence  of  liquor,  who,  when  in 
this  condition,  was  violent  and  dangerous,  was  not  occasioned  by  the 
act  of  a  barkeeper  who  had  furnished  liquor  to  the  slayer  when  he  was 
already  drunk,  and  had  failed  to  protect  the  deceased  from  the  homi- 
cidal assault  made  upon  him  in  the  barkeeper's  place  of  business. 
Although  the  latter  violated  a  penal  statiite  of  this  State  in  so  fur- 
nishing the  hquor,  it  was,  in  effect,  held  that  he  was  not  bound  to 


346  HENDERSON   V.   DADE    COAL   CO.  [CHAP.  III. 

anticipate  that  this  unlawful  conduct  on  his  part  would  result  in  a 
homicide.  A  somewhat  similar  question  was  dealt  with  in  Shugart  v. 
Egan,  83  111.  56.  There  the  person  furnished  with  the  intoxicating 
liquors  was  himself,  in  consequence  of  abusive  language  used  to 
another,  assaulted  and  killed.  In  a  sense,  the  furnishing  of  the  liquor 
was  an  indirect  cause  of  his  death,  but  the  court  held  it  was  not  the 
efficient  and  proximate  cause.  In  a  case  decided  by  the  Supreme 
Court  of  Minnesota  (Swanfin  v.  Lowry,  34  N.  W.  22)  it  appeared 
that  a  minor  person  of  the  age  of  18,  upon  inx-itation  of  the  de- 
fendants, drank  intoxicating  liquors  with  them  and  their  friends  at 
divers  saloons  several  times  during  the  same  evening,  some  of  the 
liquor  being  ordered  and  paid  for  by  the  defendants  themselves.  "  He 
became  intoxicated  and  quarrelsome,  and  committed  an  assault  upon 
plaintiff,  resulting  in  serious  injury  to  him,"  but  "was  not  incited 
thereto  by  the  defendants,  and  it  was  his  own  voluntary  act.  In  an 
action  against  them  by  the  plaintiff  for  damages,  on  the  ground  that 
the  assault  was  the  result  of  their  acts  in  furnishing  the  liquor  supplied 
to  the  minor,"  the  re\'ie'wing  court  held  "that  the  damages  were  too 
remote,  and  were  not  to  be  deemed  the  natural  and  proximate  result 
of  the  alleged  wrongful  acts  of  the  defendants."  A  case  which,  upon 
its  facts,  is  still  more  closely  in  point,  is  that  of  Hullinger  v.  Worrell, 
83  111.  220.  It  was  there  held  that  a  sheriff  who  negligently  permitted 
the  escape  of  a  prisoner  in  his  custody  under  an  indictment  for  an  as- 
sault with  intent  to  murder  was  not  liable  in  damages  for  the  conse- 
quences of  a  subsequent  assault  by  the  escaped  prisoner  upon  the  same 
person  upon  whom  the  indictment  in  question  charged  that  the  original 
assault  had  been  committed.  This  decision  was  based  explicitly  upon 
the  proposition  that  the  act  of  the  prisoner,  after  regaining  his  lib- 
erty, was  not  the  natural  and  probable  consequence  of  the  escape. 
Cases  more  or  less  resembling  the  foregoing  are  quite  numerous,  but 
it  would  not  be  helpful  to  multiply  citations  on  this  line.  The  rule 
of  law  that  damages  arising  ex  delicto  are  not  recoverable  unless 
they  spring  from  the  negligence  or  misconduct  of  the  defendant  is  as 
well  settled  as  any  legal  principle.  The  difficulty  arises  in  its  appli- 
cation to  given  cases.  We  have  been  unable  to  find  any  case  precisely 
like  the  present,  but  our  minds  have,  without  cfifficulty,  reached  the 
conclusion  that  none  of  the  lessees  of  penitentiary  con\'icts  named  as 
defendants  can  be  made  liable  for  the  crime  committed  in  this  instance. 
Nothing  they  did  or  omitted  was  its  efficient  or  proximate  cause. 
It  was  the  independent  act  of  another,  not  standing  in  any  relation  to 
the  defendants  which  would  render  what  he  did  imputable  to  them. 
The  court  below  was  right  in  sustaining  the  demurrers  and  dismissing 
the  action. 

Judgment  affirmed. 


SECT,  v.]  HULLINGER   V.    WOKRELL.  347 


HULLINGER  v.  WORRELL. 
Supreme  Court  of  Illinois,  1876. 

[Reported  83  ///.  220.] 

Per  Curiam.  This  was  an  action  of  trespass  on  the  case,  brought 
by  the  plaintiff  against  the  defendant,  sheriff  of  the  county  of  White- 
side.    The  declaration  contained  two  counts. 

The  first  set  up  that  defendant,  as  such  sheriff  haAang  in  his  la\\'ful 
custody  one  Gardner  Barker,  under  an  indictment  for  an  assault  with 
a  deadly  weapon  upon  the  plaintiff,  with  an  intent  to  do  him  a  great 
bodily  injury,  negligently  sufTered  said  Barker  to  escape  from  his  cus- 
tody, and  that  afterwards  Barker,  being  at  large,  made  a  further  assault 
upon  plaintiff,  and  threatened  to  take  liis  life,  and  that  plaintiff,  for 
his  safety,  was  compelled  to  procure  Barker  to  be  bound  over  to  keep 
the  peace,  about  which  plaintiff  incurred  expense  and  sustained  dam- 
age, for  which  he  brings  his  suit. 

The  second  count  sets  up  that  defendant,  ha\dng  Barker  in  his  cus- 
tody as  aforementioned,  chscharged  him  out  of  liis  custody  and  incited 
him  to  commit  an  assault  upon  the  plaintiff,  for  which  assault  and 
threats  to  commit  a  further  one,  plaintiff  was  compelled  to  make  com- 
plaint and  have  Barker  bound  over  to  keep  the  peace,  by  means  whereof 
plaintiff  suffered  loss  in  a  large  sum  of  money.  The  court  below  sus- 
tained a  demurrer  to  the  declaration,  and  the  plaintiff  appealed. 

Neither  count  of  the  declaration  shows  any  cause  of  action  in  the 
plaintiff.  He  was  not  a  party  to  the  criminal  proceeding  under  which 
Barker  was  held  in  custody,  and  permitting  the  escape  from  such  cus- 
tody was  no  legal  injury  to  the  plaintiff.  The  subsequent  assault  by 
Barker  upon  plaintiff,  and  the  procuring  him  to  be  bound  over  to  keep 
the  peace,  were  not  the  natural  and  probable  consequences  of  permit- 
ting him  to  escape  from  custody;  nor  was  such  escape  from  custody 
the  proximate  cause  thereof.  See  City  of  Rockford  v.  Tripp,  83  111. 
247.  If  a  charge  of  trespass  by  the  defendant  may  be  made  out  of  the 
second  count,  this  form  of  action  would  not  lie  therefor,  the  suit  ha\ang 
been  commenced  in  1871,  and  judgment  rendered  in  1872,  before  the 
passage  of  the  act  of  1874  abolishing  the  distinction  between  the 
actions  of  trespass  and  trespass  on  the  case. 

The  judgment  is  affirmed. 


348  THUBRON   V.   DRAVO   CONTRACTING   CO.  [CHAP.  III. 


THUBRON  V.   DRAVO  CONTRACTING   CO. 
Supreme  Court  of  Pennsylvania,  1913. 

[Reported  238  Pa.  443.] 

Stewart,  J.  The  plaintiff  sought  in  this  action  to  recover  for  the 
loss  of  two  horses  which  were  killed  under  the  following  circumstances. 
The  horses  had  been  in  the  care  and  custody  of  the  owner's  servant, 
who  was  leading  them  at  night  time  through  a  public  street  in  the  city 
of  Pittsburg,  on  the  way  to  the  stable  where  usually  kept.  The  evi- 
dence shows  clearly  that,  either  through  the  negligence  of  the  servant,  or 
because  of  unexplained  fright,  they  escaped  from  the  control  of  the 
servant  and  ran  in  the  direction  in  which  they  were  being  led,  but  too 
far  for  their  own  safety.  In  continuing  straight  on  after  a  certain  point 
had  been  reached,  they  were  not  following  the  route  on  which  they 
would  have  been  led,  but  one  which  ended  a  short  distance  beyond  on 
the  bank  of  the  Allegheny  River.  There  had  been  a  bridge  at  this  point, 
but  it  was  being  removed  by  the  city  through  defendant  as  contractor 
for  the  work.  No  sufficient  barriers  at  the  terminus  of  the  street  on 
the  bank  existed,  and  in  consequence,  the  horses  being  without  control, 
when  they  reached  this  terminus,  plunged  over  a  high  embankment 
into  the  river  and  were  killed  by  the  fall.  The  sole  question  in  the  case 
is  what  was  the  proximate  cause  of  the  accident?  The  defendant's 
negligence  in  failing  to  erect  barriers  on  the  embankment  may  be  con- 
ceded, but  liability  for  plaintiff's  loss  does  not  result  therefrom,  except 
as  such  negligence  was  the  proximate  cause.  Mere  concurrence  of 
one's  negligence  with  the  proximate  and  efficient  cause  of  the  disaster 
will  not  create  liability.  But  for  the  escape  of  the  horses  from  the 
control  of  the  party  in  charge  the  accident  would  not  have  happened. 
For  that  escape  defendants  of  course  were  not  liable.  Our  own  cases 
leave  us  in  no  doubt  as  to  the  correct  rule  to  be  applied  where  such  con- 
ditions as  these  presented  here  exist.  It  should  first  be.  observed,  that 
the  measure  of  duty  with  respect  to  the  maintenance  of  barriers  on  the 
river  embankment  was  neither  more  nor  less  than  the  duty  that  would 
have  rested  on  the  city  had  it  undertaken  the  work  of  removing  the 
bridge  otherwise  than  through  a  contractor.  It  follows  that  the  cases 
we  cite  are  none  the  less  governing  because  of  the  fact  that  in  each  the 
negligence  charged  was  failure  on  the  part  of  a  municipality  to  main- 
tain the  highway  in  a  reasonably  safe  condition  for  public  travel.  Be- 
ginning with  .Jackson  Township  v.  Wagner,  127  Pa.  184,  and  repeated 
in  SchaefFer  v.  .Jackson  Township,  1.50  Pa.  145,  Willis  v.  xVrmstrong 
County,  183  Pa.  184,  Nichols  v.  Pittsfield  Township,  209  Pa.  240, 
and  others  which  might  be  cited,  we  have  uniformly  held  that  dangers 
which  a  runaway  horse  may  encounter  in  his  erratic  course  are  not  such 


SECT,  v.]  THUBRON   V.   DRAVO   CONTRACTING    CO.  349 

as  the  municipality  is  bound  to  provide  against;  its  duty  in  this  respect 
being  measured  alone  by  reasonable  regard  for  the  safety  of  the  ordinary 
traveler,  himself  exercising  reasonable  care  and  prudence.  Whenever 
in  any  of  our  cases  a  municipality  has  been  held  liable  for  damages  re- 
sulting through  a  frightened  horse,  it  has  appeared  as  a  fact  that  the 
horse  took  fright  at  a  point  on  the  highway  where  it  was  in  unsafe 
condition,  and  the  disaster  followed  as  an  immediate  consequence. 
This  is  a  clear  distinction  between  cases  of  this  character  and  cases 
like  the  one  we  are  now  dealing  with,  and  nowhere  is  this  distinction 
more  clearly  recognized  and  explained  than  in  Schaeffer  v.  Jackson 
Township,  supra.  Heydrick,  J.,  delivering  the  opinion  there,  says: 
"  It  is  a  general  rule  as  well  settled  as  anything  in  the  law  of  negligence 
that  a  man  is  responsible  for  such  consequences  of  his  fault  as  are  nat- 
ural or  probable,  and  might  therefore"  be  seen  by  ordinary  forecast, 
but  if  this  fault  happen  to  concur  with  something  extraordinary,  and 
therefore  not  likely  to  be  foreseen,  he  wall  not  be  answerable  for  the 
extraordinary  result.  The  rule  applies  in  actions  against  municipalities 
and  quasi  municipal  corporations  as  well  as  to  natural  persons  and  pri- 
vate corporations.  The  concurrence  of  that  which  is  ordinary  with  a 
party's  negligence  does  not  relieve  him  from  responsibility  for  the 
resultant  injury.  Examples  of  such  concurrence  may  be  found  in 
cases  where  by  reason  of  causes  known  to  the  public  authorities 
horses  are  likely  to  become  frightened  and  in  their  sudden  fright 
plunge  over  an  unguarded  precipice,  or  rush  upon  some  danger  in 
the  highway  for  the  existence  of  which  the  authorities  are  responsible. 
In  such  cases  the  consequences  of  the  neglect  of  duty  are  natural  and 
probable  and  therefore  ought  to  be  foreseen.  But  when,  from  extra- 
ordinary causes,  for  the  existence  of  which  the  superiisors  are  not  re- 
sponsible and  of  which  they  cannot  be  presumed  to  have  had  notice, 
a  driver  loses  control  of  his  horses  and  they  come  in  contact  with  a  de- 
fect in  the  highway,  there  is  no  more  reason  for  holding  the  township 
answerable  for  a  resultant  injury  than  there  is  for  holding  any  other 
party  responsible  for  the  result  of  the  concurrence  of  something  which 
he  could  not  foresee  with  his  negligence."  Further  on  in  the  opinion  he 
says,  referring  to  several  cases  of  similar  import,  "These  judgments 
require  no  vindication.  They  are  logical  deductions  from  the  rule  of 
law  which  must  be  invoked  by  every  plaintiff  who  seeks  redress  for  an 
injury  received  through  the  negligence  of  another.  The  injury  must 
have  been  the  natural  and  probable  result  of  the  defendant's  negligence. 
But  the  cases  must  be  rare  in  which  an  injury  can  be  said  to  be  the  re- 
sult of  the  negligence  of  a  party  when  there  is  another  and  primary 
efficient  proximate  cause,  wholly  independent  of  such  negligence  and 
for  which  the  party  charged  with  negligence  is  in  no  way  responsible. 
In  such  cases  it  would  be  incumbent  on  the  plaintiff  to  show  that  the 
accident  would  have  happened  without  the  concurrence  of  the  primary 
efficient  proximate  cause."    The  full  significance  of  what  was  here  said 


350  THUBRON   V.   DRAVO   CONTRACTING   CO.  [CHAP.  III. 

can  only  be  understood  as  the  facts  of  the  case  are  known.  That  was  a 
case  when  a  horse,  hitched  to  a  vehicle,  took  fright  at  a  donkey,  draw- 
ing a  cart  loaded  with  tin  cans,  and  ran  way,  wrecking  one  of  the 
wheels,  which  dragged  upon  the  ground  until  it  reached  a  hole,  negli- 
gently left  in  the  highway,  when  the  occupants  were  thrown  out  and 
injured.  It  was  held,  reversing  the  judgment  in  the  court  below,  that 
the  proximate  cause  of  the  injury  was  the  fright  of  the  horse  which 
was  not  caused  by  any  neglect  of  the  township.  As  in  that  case,  so  in 
this,  the  escape  of  the  horses  from  control  of  the  party  in  charge  was 
the  efficient,  primary,  and  proximate  cause,  and  for  which  no  respon- 
sibility rested  on  the  defendant;  and  this  being  so,  the  plaintiff  would 
be  entitled  to  recover  from  the  defendant  only  as  the  case  showed 
that  the  accident  would  have  happened  without  the  concurrence  of  such 
primary  cause.  The  case  showed  just  the  contrary,  that  had  they 
remained  in  control  of  the  servant  thej^  would  not  have  taken  the 
road  leading  to  the  precipice.  The  case  cited  is  authority  for  the  rule 
that  when  there  are  two  efficient,  independent,  proximate  causes  of  an 
injury  sustained  on  a  highway,  the  primary  cause  being  one  for  which 
the  party  charged  with  negligence  is  not  responsible  —  here  the  fright- 
ening and  escape  of  the  horses  —  and  the  other  being  a  defect  in  the 
highway,  the  injury  must  be  referred  to  the  former  and  not  to  the  latter. 
As  shown  by  Mr.  Justice  Heydrick  in  his  opinion  the  rule  here  applied 
is  one  which  has  received  general  recognition.  To  the  cases  he  cites 
from  other  States  we  may  add  that  of  Davis  v.  Inhabitants  of  Dudley, 
4  Allen,  557,  as  not  only  recognizing  the  rule  above  asserted,  but  as  sug- 
gesting quite  another  difficulty  in  the  way  of  the  plaintiff's  recovery. 
In  the  case  we  cite  the  accident  occurred  in  this  wise.  The  plaintiff 
was  driving  his  sleigh  upon  the  highway  when,  because  of  a  secret  de- 
fect, the  bolt  connecting  the  cross  bar  and  thills  with  the  sleigh  broke 
and  let  them  fall  upon  the  heels  of  the  horses,  whereupon  the  horse 
became  frightened  and  having  got  detached  from  the  sleigh  and  loosened 
from  the  control  of  the  driver,  ran  about  thirty  rods,  in  a  straight  course, 
and  there  struck  a  pile  of  wood  Ij^ing  partly  within  the  traveled  portion 
of  the  way  and  broke  his  leg.  The  action  was  for  the  injury  to  the 
horse.  From  the  opinion  in  this  case  we  quote  the  following :  "  Here 
the  accident  and  injury  were  not  coincident,  but  were  separate  and  were 
produced  by  separate  causes.  The  effect  of  the  accident  as  a  procuring 
cause  was  complete  when  the  horse,  frightened  by  the  falling  of  the  cross 
tree  and  thills  upon  his  heels,  became  detached  from  the  sleigh  and  had 
escaped  from  the  control  of  the  driver.  The  blind  Aaolence  of  the  animal, 
acting  without  guidance  or  direction,  became,  in  the  course  and  order 
of  incidents  which  ensued,  the  supervening  and  proximate  cause  of 
the  injury  inflicted  by  his  running  against  the  wood  pile,  which  con- 
stituted an  unlawful  obstruction  and  defect  in  the  highway.  In  this 
succession  of  events,  it  happened  that  the  accident  placed  the  owner  in 
a  situation  where  it  was  out  of  his  power  to  exercise  the  care  over  the 


SECT,  v.]       SOUTH    SIDE    PASSENGER   RAILWAY    CO,   V.    TEICH.  351 

horse  while  this  new  cause  was  in  operation,  and  until  it  had  con- 
tributed to  produce  the  disaster  by  which  his  leg  was  broken.  The 
accidental  breaking  of  the  bolt  was  a  personal  misfortune,  the  direct 
consequence  of  which  was  all  to  be  borne  by  the  plaintiff  himself.  It  is 
one  of  those  consequences,  that  it  disables  him  from  recovering  com- 
pensation for  the  loss  and  damage  resulting  from  the  injury  to  his 
horse,  because  haAing  lost  all  opportunity  and  power  of  using,  it  was 
impossible  for  him  to  prove  that  he  did  use  due  and  ordinary  care 
to  prevent  it ;  and  therefore  since  he  cannot  establish  this  indispensable 
preliminary  fact,  he  can  maintain  no  action  against  the  defendant,  al- 
though the  defect  in  the  highway  for  which  the  town  was  responsible 
was  the  immediate  cause  of  it."  In  the  present  case  the  primary,  effi- 
cient cause  of  the  accident  was  the  escape  of  the  horses  from  control; 
whether  this  happened  through  the  carelessness  of  the  party  in  charge 
or  through  fright  at  some  object  is  immaterial.  However  this  may  be, 
the  series  of  occurrences  that  led  to  the  injury  began  with  the  escape; 
the  running  away  followed  in  consequence  of  the  escape,  and  the 
plunging  over  the  precipice  resulted  from  the  running  away.  After 
the  horses  had  broken  away  from  the  servant  they  were  free  from  his 
control  and  direction  and  pursued  their  own  way.  There  being  no  op- 
portunity for  the  exercise  of  due  care  by  the  servant  to  avoid  the  acci- 
dent after  the  escape,  proof  of  the  indispensable  preliminary  fact  was 
rendered  impossible.  The  case  last  cited  develops  the  reason  on  which 
must  rest  the  general  rule,  that  municipalities  are  under  no  obligation 
to  keep  their  highways  in  such  condition  that  damage  may  not  be 
caused  thereon  by  horses  which  ha^'e  escaped  from  the  control  of  their 
driver  or  are  running  away.  The  rule  as  we  have  stated  it  appears  in 
the  text  of  Dillon  on  Municipal  Corporations,  Sec.  1015.  The  authori- 
ties supporting  are  given  in  an  extensive  note  thereto. 

The  case  called  for  binding  instructions  for  the  defendants  and  it 
was  therefore  error  to  refuse  defendant's  third  point. 

The  judgment  is  reversed. 


SOUTH  SIDE  PASSENGER  RAILWAY  CO.  v.  TRICH. 
Supreme  Court  of  Pennsylvania,  1887. 

[Reported  117  Pa.  390.] 

On  April  5,  1882,  Mrs.  Trich  and  her  father,  Mr.  John  W.  McCully, 
when  at  the  corner  of  Third  and  Smithfield  Streets,  Pittsburg,  hailed 
a  street  car  coming  up  Third  just  as  it  reached  Smithfield  Street.  The 
cars  in  use  were  what  are  commonly  called  "bob-tails,"  ha\nng  a 
driver  but  no  conductor,  with  an  ordinary  platform  and  rail  at  the 
rear  end,  approached  by  steps  on  either  side.  The  car  started  off  rapidly 
when  Mrs.  Trich  had  one  foot  on  the  platform  and  the  other  on  the 


352         SOUTU   SIDE    PASSENGER   RAILWAY   CO.    V.    TKICH.      [CHAP.  III. 

step,  with  her  hand  holding  the  rail;  and  as  it  reached  the  middle  of 
Smithfield,  Mrs.  Trich  not  yet  ha\'ing  entered,  the  driver  whipped  up 
suddenly  to  avoid  a  collision  with  a  runaway  horse  and  carriage  seen  to 
be  coming  down  Smithfield.  The  abrupt  motion  communicated  to  the 
car  threw  Mrs.  Trich  from  the  platform,  and  just  as  she  alighted  she  was 
struck  by  the  runaway  and  severely  injured.^ 

Green,  J.  There  is  no  manner  of  question  as  to  what  was  the 
actual  and  immediate  cause  of  the  injury  inflicted  upon  Mrs.  Trich. 
It  was  an  entirely  undisputed  fact  that  she  was  struck  and  injured 
by  a  runaway  horse  and  buggy.  All  the  witnesses  who  saw  the  occur- 
rence so  testify.  Thus,  Mr.  McCully,  the  father  of  Mrs.  Trich,  who 
was  present  with  her  at  the  time  and  was  examined  on  her  behalf, 
after  describing  her  attempt  to  get  on  the  car  and  saying  that  she  was 
bounced  off,  adds:  "A  moment  or  two  afterwards  here  comes  a  runa- 
way horse  and  buggy  down  the  street,  and  the  shaft,  I  suppose  it  was, 
caught  her  under  the  arm  and  dragged  her  to  the  street  crossing  and 
she  fell  away."  The  only  other  w^tness  examined  for  the  plaintiffs 
as  to  the  facts  of  the  occurrence,  M.  M.  Herrington,  testified :  "  There 
is  a  banking  building  there  on  the  corner,  and  I  saw  the  lady  fall  —  fall 
off  —  and  when  she  fell,  to  the  best  of  my  loiowledge  she  kind  of  threw 
herself  back  this  way  and  there  was  a  phaeton  or  buggy  of  some  kind 
running  —  a  horse  running  down  the  street  with  a  buggy  —  and  it 
struck  her,  and  they  picked  her  up  and  carried  her  into  Mr.  Johnson's 
drug  store."  There  was  no  contradiction  of  this  testimony.  But 
one  other  witness,  Mrs.  Vrailing,  examined  by  the  defendant,  testified 
to  the  fact  of  the  injury  and  she  also  said  it  was  done  by  the  buggy 
striking  the  woman. 

The  learned  court  below,  in  the  charge,  said :  "  The  e"vadence  seems  to 
me  to  preponderate  very  largely  in  favor  of  the  fact  that  the  immediate 
force  which  caused  the  injury  to  this  woman  was  the  runaway  horse." 
This  was  an  understatement  of  the  testimony  which  might  have  led 
the  jury  to  suppose  that  there  was  an  open  question,  with  a  prepon- 
derance of  e\'idence  only,  as  to  whether  it  was  the  runaway  horse  and 
buggy  which  inflicted  the  injury.  The  defendant  had  presented  a  point 
stating  that  it  was  the  undisputed  e\adence  that  Mrs.  Trich  was  in- 
jured by  being  struck  l)y  a  runaway  horse,  so  that  the  question  was 
directly  before  the  court.  In  ^•iew  of  that  circumstance  we  think  the 
court  should  have  specifically  so  charged  and  not  left  it  as  an  open 
question  for  the  jury  to  determine,  with  a  mere  expression  of  opinion 
that  the  e\idence  preponderated  in  that  direction. 

Assuming  then,  as  we  do,  that  it  was  the  undisputed  e\adence  that 
the  injury  was  inflicted  by  the  runaway  horse  and  buggy,  the  only 
remaining  question  is  whether  it  was  the  duty  of  the  court  to  declare 
whether  this  was  the  proximate  cause  of  the  injury.  The  point  pre- 
sented by  the  defendant  asked  for  such  an  instruction,  but  the  coiu-t 

*  The  stateinoiit  of  evidence  is  omitted.  —  Ed. 


SECT,  v.]      SOUTH    SIDE   PASSENGER   RAILWAY   CO.    V.   TRICH.  353 

refused  it,  saying  it  was  a  question  for  the  jury  under  the  evidence- 
In  this  we  think  there  was  error.  In  the  case  of  West  Mahanoy  v. 
Watson,  112  Pa.  574,  we  reversed  the  court  below  for  making  just  such 
an  answer  to  just  such  a  point;  and  upon  a  review  of  the  facts  of  the 
case  we  held  that  they  did  not  constitute  an  instance  of  proximate 
cause  as  against  the  defendant,  and  therefore  decided  that  the  defend- 
ant's point  should  have  been  affirmed,  which  took  the  case  from  the 
jury.  Mr.  Justice  Paxson,  in  delivering  the  opinion,  said:  "While  it  is 
undoubtedly  true  as  a  general  proposition  that  the  question  of  proximate 
cause  is  for  the  jury,  yet  it  has  been  repeatedly  held  that  where  there 
are  no  disputed  facts  the  court  may  determine  it.  It  is  sufficient 
to  refer  to  Hoag  v.  The  Railroad  Co.,  85  Pa.  293.  In  that  case  this 
court,  following  Railroad  v.  Kerr,  62  Pa.  353,  and  Railroad  Co.  v. 
Hope,  30  Pa.  373,  laid  down  the  rule  as  to  proximate  cause  as  follows: 
"In  determining  what  is  proximate  cause  the  true  rule  is  that  the 
injury  must  be  the  natural  and  probable  consequence  of  the  negligence; 
such  a  consequence  as  under  the  surrounding  circumstances  of  the 
case  might  and  ought  to  have  been  foreseen  by  the  wrongdoer  as 
likely  to  flow  from  his  act." 

Applying  tliis  rule  to  the  facts  of  the  present  case,  can  it  be  said  that 
the  injury  of  Mrs.  Trich  was  the  natural  and  probable  consequence 
of  the  car  driver's  negligence  in  urging  his  horses  to  a  faster  gait? 
We  think  not.  There  was  not  a  particle  of  e\'idence  to  show  that 
runaway  horses  and  vehicles  were  frequently,  or  indeed  ever,  seen  upon 
Smithfield  Street  where  this  accident  occurred.  There  was  no  e\'idence 
upon  that  subject.  It  was  certainly  not  a  natural  consequence  of  a  per- 
son being  upon  that  street  that  he  would  be  struck  by  a  runaway  horse. 
Nor  is  there  the  slightest  reason  for  sajang  that  it  would  be  a  probable 
consequence.  The  utmost  that  can  be  said  would  be,  that  such  a 
consequence  might  possibly  happen.  But  things  or  results  which  are 
only  possible  cannot  be  spoken  of  as  either  probable  or  natural.  For 
the  latter  are  those  tilings  or  events  which  are  likely  to  happen  and 
which  for  that  reason  should  be  foreseen.  Things  wliich  are  possible 
may  never  happen,  but  those  which  are  natural  or  probable  are  those 
which  do  happen,  and  happen  with  such  frequency  or  regularity  as  to 
become  a  matter  of  definite  inference.  To  impose  such  a  standard 
of  care  as  requires,  in  the  ordinary  affairs  of  life,  precaution  on  the 
part  of  indi\'iduals  against  all  the  possibilities  which  may  occur,  is 
establishing  a  degree  of  responsibility  quite  beyond  any  legal  limitations 
which  have  yet  been  declared.  We  are  of  opinion  that  in  the  facts  of 
the  present  case  the  direct  and  immediately  producing  cause  of  Mrs. 
Trich's  injury  was  her  being  struck  by  a  runaway  horse  and  buggy  over 
which  the  defendant  company  had  no  sort  of  control  and  for  which  it  is 
not  responsible;  and  therefore  we  conclude  that  the  proximate  cause  of 
the  injury  in  the  legal  sense,  was  the  collision  of  the  horse  and  buggy 
with  the  person  of  Mrs.  Trich  and  not  the  negligence  of  the  defendant. 


354 


MANGAN    V.    ATTERTON. 


[chap.  IIL 


The  case  of  West  Mahanoy  v.  Watson  came  again  into  this  court  and 
is  reported  in  116  Pa.  344.  The  present  Chief  Justice,  in  dehvering  the 
opinion  of  the  court,  said:  "These  facts  narrow  the  case  down  to  the 
single  question,  was  the  upset  at  the  ash-heap  on  the  township  road  the 
immediate  or  direct  cause  of  the  loss  of  the  horses?  As  we  have  seen, 
the  facts  themselves  answer  this  interrogatory  in  the  negative  and 
necessarily  determine  the  case  in  favor  of  the  plaintiff  in  error.  In  the 
case  of  Hoag  v.  Michigan  Southern  &  Lake  Shore  Railroad  Co.,  85  Pa. 
293,  Mr.  Justice  Trunkey,  then  president  of  the  Common  Pleas  of  Ven- 
ango County,  in  his  charge  to  the  jury  on  the  trial  of  the  above-named 
cause,  said :  '  The  immediate  and  not  the  remote  cause  is  to  be  consid- 
ered. This  maxim  is  not  to  be  controlled  b}^  time  or  distance,  but  by 
the  succession  of  events.  The  question  is,  did  the  cause  alleged  pro- 
duce its  effect  -R-ithout  another  cause  intervening,  or  was  it  to  operate 
through  or  by  means  of  this  intervening  cause?'  As  the  principle 
here  stated  was  adopted  by  the  aflBrmance  of  this  court  foUowang  Penn- 
sylvania Railroad  v.  Kerr,  62  Pa.  353,  we  may  regard  it  as  the  settled 
law  of  this  State." 

In  the  facts  of  the  present  case  we  find  a  perfect  illustration  of  this 
principle.  Mrs.  Trich  herself  testified  that  when  she  was  "bounced" 
from  the  car  she  fell  on  her  feet.  Immediately  after,  she  was  struck 
by  the  runaway  horse  and  buggy  and  from  them  received  her  injury. 
The  jolting  from  the  car  simply  landed  her  on  her  feet  and  inflicted  no 
injury.  But  another  agency  intervened,  which  was  entirely  independ- 
ent of  any  act  of  the  defendant,  and  that  agency  alone  inflicted  the 
injury  in  question.  Follownng  the  doctrine  of  the  last  case  cited  we 
feel  clearly  obliged  to  hold  that  the  plaintiff's  injury  was  inflicted  by 
the  special  intervening  agency  stated,  and  therefore  the  defendant  is 
not  liable.  In  all  the  cases  cited,  as  in  several  others  not  referred  to, 
this  court  finally  determined  them  upon  its  own  \aew  of  the  facts  with- 
out regard  to  the  verdicts  of  the  juries.  The  defendant's  point  should 
have  been  affirmed. 

Judgment  reversed. 


MANGAN  V.   ATTERTON. 
Court  of  Exchequer,  1866. 

[Reported  L.  R.  1  Ex.  239.] 

Appeal  from  the  Staffordshire  County  Court  at  Lichfield. 

The  plaintiff  sued  for  injury  caused  to  him  by  a  machine  of  the  de- 
fendant, under  the  following  circumstances.  The  defendant,  who  is 
a  whitesmith  at  Sheffield,  was  accustomed  on  market  days  to  expose 
goods  for  sale  in  the  public  street;  and  on  the  day  of  the  accident  he 
exposed  amongst  them  a  machine  for  crushing  oil-cake,  unfenced  and 


SECT,  v.]  LANE   V.   ATLANTIC   WORKS.  355 

without  superintendence.  The  machine  was  turned  by  a  handle  on 
one  side  of  it,  and  on  the  other  side  the  cogs  which  worked  the  crushing 
rollers  were  exposed ;  the  handle  might  have  been,  but  was  not,  secured 
by  wire.  The  plaintiff,  a  boy  of  four  years  old,  was  coming  past  the 
machine  from  school,  in  company  with  his  brother,  of  the  age  of  seven 
years  (to  whose  charge  his  mother  had  entrusted  him),  and  with  other 
lads;  and  whilst  one  of  the  lads  was  turning  the  handle,  the  plaintiff, 
by  the  direction  of  his  brother,  put  his  fingers  in  the  cogs,  which  so 
crushed  them  as  to  make  their  amputation  necessary. 

The  county  court  judge  directed  the  jury  that  if  they  thought  the 
machine  was  dangerous,  and  one  that  should  not  have  been  left  un- 
guarded in  the  way  of  ignorant  people,  and  especially  children,  without, 
at  all  events,  the  handle  being  removed  or  fastened  up  and  the  cogs 
thrown  out  of  gear,  they  should  hold  the  defendant  Hable  for  such 
damages  as  they  might  think  right. 

The  jury  inspected  the  machine,  and  gave  a  verdict  for  the  plaintiff, 
damages  10/.    The  defendant  appealed. 

Martin,  B.  Even  if  the  defendant  was  guilty  of  any  negligence  in 
placing  the  machine  where  it  was,  as  to  which  I  say  nothing,  his  act 
was  too  remote  a  cause  of  the  mischief  to  make  him  liable.  The  acci- 
dent was  directly  caused  by  the  act  of  the  boy  himself. 

Bramwell,  B.  The  defendant  is  no  more  liable  than  if  he  had  ex- 
posed goods  colored  with  a  poisonous  paint,  and  the  child  had  sucked 
them.  It  m^,y  seem  a  harsh  way  of  putting  it,  but  suppose  this  machine 
had  been  of  a  very  delicate  construction,  and  had  been  injured  by  the 
child's  fingers,  would  not  the  child,  in  spite  of  his  tender  years,  have 
been  liable  to  an  action  as  a  tortfeasor?  This  shows  that  it  is  impos- 
sible to  hold  the  defendant  liable.  But  further,  I  can  see  no  e\'idence 
of  negligence  in  him.  If  his  act  in  exposing  this  machine  was  negligence, 
will  his  act  in  exposing  it  again  be  called  wilfully  mischievous?  If  that 
could  not  be  said,  then  it  is  not  negligence,  for  between  negligence 
and  wilful  mischief  there  is  no  difference  but  of  degree. 

Pigott,  B.,  concurred. 

Judgment  for  the  defendant. 


LANE  V.  ATLANTIC  WORKS.  '^^ -^ 

Supreme  Judicial  Court  of  Massachusetts,  1872. 

[Reported  111   Mass.  136] 

Tort.     The  declaration  was  as  follows :   "  And  the  plaintiff  says  that  /'("Wlc'U 
the  defendants  carelessly  left  a  truck,  loaded  with  iron,  in  Marion     fi^,  .  ^' 
Street,  a  public  highway  in  Boston,  for  the  space  of  twenty  minutes 
and  more;  and  the  iron  on  said  truck  was  so  carelessly  and  negligently 
placed  that  it  would  easily  fall  off;  and  that  the  plaintiff  was  walking 


356  LANE    V.    ATLANTIC    WORKS.  [CHAP.  IIL 

in  said  highway,  and  was  lawfully  in  said  highway,  and  lawfully  using 
said  highway,  and  in  the  exercise  of  due  care;  and  said  iron  upon  said 
truck  was  thrown  and  fell  therefrom  upon  the  plaintiff  in  consequence 
of  the  defendant's  carelessness,  and  the  plaintiff  was  severely  bruised 
and  crippled,"  &c.  The  answer  was  a  general  denial  of  the  plaintiff's 
allegations. 

At  the  second  trial  in  the  Superior  Court,  before  Devens,  J.,  after 
the  decision  reported  in  107  Mass.  104,  the  plaintiff  introduced  evi- 
dence that  the  defendants  left  a  truck  with  a  bar  of  iron  on  it  standing 
in  front  of  their  works  on  Marion  Street,  wliich  was  a  public  highway 
in  Boston;  that  the  iron  was  not  fastened,  but  would  easily  roll  off 
the  truck;  that  the  plaintiff,  then  seven  years  old,  and  a  boy  about  the 
same  age  named  James  Conners,  were  walking,  between  six  and  seven 
in  the  evening,  on  the  side  of  Marion  Street  opposite  the  truck  and  the 
defendants'  works;  that  Horace  Lane,  a  boy  twelve  years  old,  being 
near  the  truck,  called  to  them  to  come  over  and  see  him  move  it;  that 
the  plaintiff  and  Conners  said  they  would  go  over  and  watch  him  do  it ; 
that  they  went  over  accordingly;  that  the  plaintiff  stood  near  the  truck 
to  see  the  wheels  move,  as  Horace  Lane  took  hold  of  the  tongue  of  the 
truck;  that  Horace  Lane  moved  the  tongue  somewhat;  that  the  iron 
rolled  off  and  injured  the  plaintiff's  leg;  and  that  neither  the  plaintiff 
nor  Conners  touched  the  iron  or  truck  at  all. 

The  plaintiff  was  also  allowed  to  introduce  in  e\'idence,  against 
the  defendants'  objection,  an  ordinance  of  the  city  of  Boston  prohibiting 
trucks  or  vehicles  of  any  kind,  whether  loaded  or  unloaded,  and  whether 
with  or  without  horses,  from  stopping  in  any  street  more  than  five  min- 
utes without  some  proper  person  to  take  care  of  the  same,  or  more  than 
twenty  minutes  in  any  case. 

The  defendants  introduced  evidence  tending  to  show  that  the  iron 
was  fastened  securely  on  the  truck,  which  was  drawn  from  the  defend- 
ants' works  into  the  street  at  four  o'clock  in  the  afternoon;  that  the 
boys  removed  the  fastenings;  that  Horace  Lane  placed  the  boys  one 
on  each  side  of  the  truck;  that  he  turned  the  tongue  of  the  truck  around; 
that  he  and  Conners  then  took  hold  of  the  iron  and  rolled  it  off;  that 
the  plaintiff  had  his  hands  on  the  iron  or  on  the  truck  when  the  iron 
rolled  off  on  to  him;  and  that  the  boys  were  engaged  in  the  common 
enterprise  of  rolling  off  the  iron  and  moving  the  truck.  There  was  no 
e\'idence  that  Horace  Lane  had  any  lawful  purpose  or  object  in  moving 
the  truck,  or  any  right  to  meddle  with  it. 

The  defendants  requested  the  judge  to  give,  besides  other  rulings, 
the  following: 

"1.  Leaving  the  truck  in  the  street,  in  \'iolation  of  a  city  ordi- 
nance, might  subject  the  defendants  to  a  fine,  but  this  violation  of  the 
provisions  of  the  ordinance  would  not  of  itself  alone  render  the  defend- 
ants liable  civilly  in  this  suit;  but  negligence  must  be  shown,  and  such, 
and  only  such,  as  is  averred  in  the  declaration. 


SECT,  v.]  LANE    V.   ATLANTIC,  WORKS.  357 

"2.  In  order  to  make  the  plaintiff  a  participator  or  joint  actor  with 
Horace  Lane,  in  his  conduct  in  meddUng  with  the  truck  for  an  unlawful 
purpose,  it  was  not  necessary  for  him  to  have  actually  taken  hold  of 
the  tongue,  or  the  iron,  or  the  truck,  to  help  or  aid  in  moving  it.  It 
is  enough  if  he  joined  with  him  in  a  common  object  and  purpose  volun- 
tarily, went  across  the  street  on  his  invitation  for  that  avowed  purpose, 
and  stood  by  the  truck  to  encourage  and  aid,  by  his  presence,  word  or 
act,  the  accomplishment  of  that  purpose. 

"3.  While  it  is  true  that  negligence  alone  on  the  part  of  Horace 
Lane,  which  contributed  to  the  injury  combining  with  the  defendants' 
negligence,  would  not  prevent  a  recovery,  unless  the  plaintiff's  negli- 
gence also  concurred  as  one  of  the  contributory  causes  also;  yet,  if  the 
fault  of  Horace  Lane  was  not  negligence,  but  a  voluntary  meddling 
with  the  truck  or  iron,  for  an  unlawful  purpose,  and  wholly  as  a  sheer 
trespass,  and  this  culpable  conduct  was  the  direct  cause  of  the  injury 
which  would  not  have  happened  otherwise,  the  plaintiff  cannot  recover." 

The  judge  did  not  give  the  ruhng  requested,  but  gave  rulings,  which, 
so  far  as  they  are  now  material,  were  as  follows : 

"The  city  ordinance  is  proper  to  be  put  in  e\-idence  and  to  be  con- 
sidered by  the  jury  upon  the  question  of  negligence,  although  it  is  not 
conclusive  proof  that  the  defendants  were  in  point  of  fact  negligent 
in  the  act  of  leaving  the  truck  there.  It  is  a  matter  of  evidence,  to  be 
weighed  with  all  the  other  evidence  in  the  case.  < 

"  If  the  sole  or  the  direct  cause  of  the  accident  was  the  act  of  Horace 
Lane,  the  defendants  are  not  responsible.  If  he  was  the  culpable  cause 
of  the  accident,  that  is  to  say,  if  the  accident  resulted  from  the  fault 
of  Horace  Lane,  they  are  not  responsible.  But  if  Horace  Lane  merely 
contributed  to  the  accident,  and  if  the  accident  resulted  from  the  joint 
negligence  of  Horace  Lane  in  his  conduct  in  regard  to  mo\-ing  the  truck 
and  the  negligence  of  the  defendants  in  leaving  it  there,  where  it  was 
thus  exposed,  or  lea\dng  it  so  insecurely  fastened  that  this  particular 
danger  might  be  reasonably  apprehended  therefrom,  then  the  interme- 
diate act  of  Horace  Lane  will  not  prevent  the  plaintiff  from  recovering, 
pro\'ided  he  himself  was  in  the  exercise  of  due  and  reasonable  care. 
If  the  plaintiff  himself  participated  in  the  act  of  Horace  Lane  no  further 
than  to  go  there  and  be  a  witness  to  this  transaction  which  Horace 
Lane  proposed  to  perform,  crossing  over  the  street  by  his  invitation, 
and  witnessing  him  move  this  truck,  that  would  not  make  him  such 
a  participator  in  the  wrongful  act  of  Horace  Lane  as  to  prevent  his 
recovery,  provided  he  himself  was  in- the  exercise  of  reasonable  care. 

"  If,  however,  he  was  actually  engaged  in  the  wrongful  act  of  Horace 
Lane,  if  he  was  actually  engaged  in  disturbing  this  truck,  and  moving 
the  fastenings  which  had  been  put  upon  it  in  orfler  to  prevent  it  from 
being  disturbed,  and  was  actively  participating  in  the  act  of  Horace 
Lane,  then  he  cannot  recover.  But  if  the  act  of  the  plaintiff  was  lim- 
ited to  crossing  the  street  for  the  purpose  of  witnessing  the  act  done 


358  LANE   V.   ATLANTIC    WORKS.   -  [CHAP.  III. 

by  Horace  Lane,  in  answer  to  his  inxdtation,  and  no  active  participa- 
tion was  taken  by  the  plaintiff  other  than  that,  it  would  not  prevent 
his  recovery,  pro\'ided  he  himself  was  in  the  exercise  of  due  and  rea- 
sonable care." 

At  the  close  of  his  charge  to  the  jury  the  judge  read  the  second  rul- 
ing prayed  for  by  the  defendants,  and  said:  "If  the  plaintiff  took  an 
active  participation  in  it,  as  I  before  instructed  you,  or  went  there  as 
a  joint  actor,  for  the  purpose  of  encouraging  Horace  Lane  in  it,  he  can- 
not recover.  If  he  went  there  attracted  by  curiosity  only,  at  the  invi- 
tation of  the  party  who  was  about  to  move  the  truck,  Horace  Lane, 
then  he  may  recover;  provided,  you  are  further  satisfied  that,  in  what 
he  did,  he  was  in  the  exercise  of  the  due  and  reasonable  care  that  should 
be  expected  of  a  person  of  his  age." 

The  jury  returned  a  verdict  for  the  plaintiff  for  $6,000,  and  the  de- 
fendants alleged  exceptions. 

Colt,  J.  In  actions  of  this  description,  the  defendant  is  liable  for 
the  natural  and  probable  consequences  of  his  negligent  act  or  omission. 
The  injury  must  be  the  direct  result  of  the  misconduct  charged;  but 
it  will  not  be  considered  too  remote  if,  according  to  the  usual  experience 
of  mankind,  the  result  ought  to  have  been  apprehended. 

The  act  of  a  third  person,  intervening  and  contributing  a  condition 
necessary  to  the  injurious  effect  of  the  original  negligence,  will  not 
excuse  the  first  wrongdoer,  if  such  act  ought  to  have  been  foreseen. 
The  original  negligence  still  remains  a  culpable  and  direct  cause  of  the 
injury.  The  test  is  to  be  found  in  the  probable  injurious  consequences 
which  were  to  be  anticipated,  not  in  the  number  of  subsequent  events 
and  agencies  which  might  arise. 

Whether  in  any  given  case  the  act  charged  was  negligent,  and  whether 
the  injury  suffered  was,  within  the  relation  of  cau.se  and  effect,  legally 
attributable  to  it,  were  questions  for  the  jury.  They  present  oftentimes 
difficult  questions  of  fact,  requiring  practical  knowledge  and  experience 
for  their  settlement,  and  where  there  is  evidence  to  justify  the  verdict, 
it  cannot  be  set  aside  as  matter  of  law.  The  only  question  for  the 
court  is,  whether  the  instructions  given  upon  these  points  stated  the 
true  tests  of  liability. 

Most  of  the  instructions  which  were  requested  by  the  defendants 
as  to  their  fault,  the  plaintiff's  exercise  of  due  care,  and  the  burden  of 
proof,  were  given  in  substance.  The  defendants  now  make  only  three 
objections : 

1.  The  court  was  asked  to  rule  that  a  \nolation  of  a  city  ordinance 
would  not  of  itself  alone  render  the  defendants  liable  in  this  suit; 
but  that  negligence  must  be  shown,  and  such  negligence  as  is  averred 
in  the  declaration.  The  jury  were  plainly  told  on  this  point,  that  the 
negligence  charged  must  be  proved,  and  that  a  \aolation  of  the  city 
ordinance  was  not  conclusive  proof  of  it;  that  it  was  a  matter  of  evi- 
dence to  be  considered  with  all  the  other  evidence  in  the  case.    This  was 


II 


SECT,  v.]  LANE   V.   ATLANTIC   WORKS,  359 

sufficiently  favorable  to  the  defendants.  The  city  ordinance  was  en- 
acted for  the  purpose  of  rendering  the  streets  more  safe  and  convenient 
for  travelers.  In  determining  whether  a  particular  use  of  a  street  was 
negligent,  the  jury  might  properly  consider  the  legitimate  uses  to 
which  the  streets  are  devoted.  Wright  v.  Maiden  &  Melrose  Rail- 
road Co.,  4  Allen,  283. 

2.  The  rule  of  law  stated  to  the  jury,  as  to  what  was  necessary 
to  make  the  plaintiff  a  participator  with  Horace  Lane  in  the  unlawful 
act  of  meddling  with  the  truck  or  its  fastenings,  is  not  materially  differ- 
ent from  the  instructions  asked.  The  jury  were  first  told,  in  substance, 
that  if  the  plaintiff  did  no  more  than  go  across  the  street  by  Horace 
Lane's  invitation,  and  witness  the  transaction,  he  would  not  be  a 
participator  in  the  wrongful  act  so  as  to  prevent  a  recovery ;  but  if 
he  actually  moved  the  truck  or  its  fastenings,  or  actively  participated 
in  the  act,  he  could  not  recover.  At  the  close  of  the  charge,  in  connec- 
tion with  the  defendants'  request  on  this  point,  which  was  read  to  them, 
the  jury  were  further  told  that  if  the  plaintiff  went  there  as  a  joint 
actor,  for  the  purpose  of  encouraging  Horace  Lane,  he  could  not  recover, 
but  might  recover  if  he  went  attracted  by  curiosity  only  and  by  in- 
vitation of  Horace  Lane.  The  point  now  made  is  that  these  instruc- 
tions are  limited  to  the  purpose  for  which  he  crossed  the  street,  and  do 
not  meet  a  case  where  the  plaintiff  joined  in  the  mischief  after  he  got 
there,  and  was  standing  by  for  the  purpose  of  aid  and  encouragement, 
ready  to  help  if  needed.  But  the  instructions  with  the  defendants' 
request,  taken  together,  are  not  fairly  open  to  this  objection;  the 
jury  could  not  have  been  misled  as  to  the  true  rule,  and  must  have  found 
that  he  was  a  mere  spectator.  Brown  v.  Perkins,  1  Allen,  89,  97.  Miller 
V.  Shaw,  4  Allen,  500. 

3.  The  last  instruction  asked  was  rightly  refused.  Under  the  law 
as  laid  down  by  the  court  the  jury  must  have  found  the  defendants 
guilty  of  negligence  in  doing  that  from  which  injury  might  reasonably 
have  been  expected,  and  from  which  injury  resulted;  that  the  plaintiff 
was  in  the  exercise  of  due  care;  that  Horace  Lane's  act  was  not  the  sole, 
direct,  or  culpable  cause  of  the  injury;  that  he  did  not  purposely  roll 
the  iron  upon  the  plaintiff;  and  that  the  plaintiff  was  not  a  joint  actor 
with  him  in  the  transaction,  but  only  a  spectator.  This  supports  the 
verdict.  It  is  immaterial  whether  the  act  of  Horace  Lane  was  mere  neg- 
ligence or  a  voluntary  intermeddling.  It  was  an  act  wliich  the  jur;v'  have 
found  the  defendants  ought  to  have  apprehended  and  pro\aded  against. 
McDonald  v.  Snelling,  14  Allen,  290,  295.  Powell  v.  Deveney,  3  Cush. 
300.  Barnes  v.  Chapin,  4  Allen,  444.  Tutein  v.  Hurley,  98  Mass.  211. 
Dixon  V.  Bell,  5  M.  &  S.  198.  Mangan  v.  Atherton,  L.  R.  1  Ex.  239. 
Illidge  V.  Goodwin,  5  C.  &  P.  190.  Burrows  v.  March  Gas  Co.,  L.  R. 
5  Ex.  67,  71.    Hughes  v.  Macfie,  2  H.  &  C.  744. 

Exceptions  overruled. 


360      GLASSEY  V.  WORCESTER  CONSOLIDATED  ST.  RY.  CO.       [CHAP.  III. 


GLASSEY  V.  ^YORCESTER  CONSOLIDATED  STREET  RAII^ 

^YAY  CO. 

Supreme  Judicial  Court  of  Massachusetts,  1904. 

[Reported  185  Mass.  315.] 

Morton,  J.  These  two  cases  were  tried  and  have  been  argued 
together.  At  the  close  of  the  plaintiffs'  evidence  in  the  Superior 
Court  the  presiding  judge  ruled  at  the  defendant's  request  that  the 
plaintiffs  could  not  recover  and  directed  verdicts  for  the  defendant. 
The  cases  are  here  on  exceptions  by  the  plaintiffs  to  these  rulings. 

The  case  of  the  plaintiff  Rachel,  who  is  a  married  woman,  is  for  in- 
juries alleged  to  haxe  been  received  by  her  in  consequence  of  the  neg- 
ligence of  the  defendant  in  lea^•ing  a  large  reel  by  the  side  of  or  in 
Cameron  Street  in  Clinton,  which  some  boys  rolled  down  the  street  and 
which  struck  the  carriage  in  which  the  plaintiff  was  driving  and  threw 
her  out  and  caused  the  injuries  complained  of.  The  other  action  is 
by  the  husband  for  the  loss  of  consortium  and  the  expenses  incurred 
by  him  because  of  the  injuries  to  his  wife. 

The  CAadence  would  have  warranted  a  finding,  and  for  the  purposes 
of  these  cases  we  assume  that  such  was  the  fact,  that  the  reel  belonged 
to  the  defendant  and  had  had  feed  wire  upon  it  which  had  been  strung 
upon  its  poles  by  persons  in  its  employ.  But  it  is  not  clear  whether 
the  reel  was  left  on  a  vacant  piece  of  land  just  outside  the  limits  of  the 
highway,  or  whether  it  was  left  within  the  location  of  the  highway. 
We  assume  as  most  favorable  to  the  plaintiffs  that  it  was  left  within 
the  limits  of  the  highway.  The  uncontradicted  testimony  shows,  how- 
ever, that  it  was  left  outside  the  traveled  portion  of  the  highway  lying 
on  its  side  in  the  grass  in  a  secure  position.  The  plaintiffs  introduced 
in  e\'idence  a  by-law  of  the  town  forbidding  persons  to  leave  obstruc- 
tions of  any  kind  in  the  highway  without  a  written  license  from  the 
road  commissioners  or  other  board  ha\nng  charge  of  the  streets,  and 
they  contend  that,  if  the  reel  was  left  \\athin  the  location  of  the  highway 
when  forbidden  by  the  by-law,  that  of  itself  constituted  such  negligence 
as  renders  the  defendant  liable.  But  the  most,  we  think,  that  can  be 
said  of  this  contention  is  that  the  leaA-ing  of  the  reel  within  the  limits 
of  the  highway  was  evidence  of  negligence,  not  that  in  and  of  itself 
rendered  the  defendant  liable  or  should  be  held  as  matter  of  law  to  have 
contributed  directly  to  the  accident.  Hanlon  v.  South  Boston  Horse 
Railroad,  129  Mass.  310.  The  question  is  whether  in  lea\-ing  the  reel 
l^ing  on  its  side  in  the  grass  near  the  road  the  defendant  ought  reason- 
ably to  have  anticipated  that  children  passing  along  the  street  on  their 
way  to  school,  or  for  other  purposes,  would  take  it  from  the  place  where 


SECT,  v.]      GLASSEY  V.  WORCESTER  CONSOLIDATED  ST.  KY.  CO.  361 

it  had  been  left,  and  engage  in  rolling  it  up  and  down  the  street,  and 
that  travelers  on  the  highway  would  thereby  be  injured.  The  question 
is  not  whether  a  high  degree  of  caution  ought  to  have  led  the  defendant 
to  anticipate  that  such  a  thing  might  possibly  occur,  but  whether  it 
ought  reasonably  to  have  been  expected  to  happen  in  the  ordinary 
course  of  events.  In  the  former  case  the  defendant  would  not  be  liable, 
and  in  the  latter  it  might  be  held  liable,  notwithstanding  an  active 
human  agency  had  intervened  between  the  original  wrongful  act  and 
the  injury.  The  case  of  Stone  v.  Boston  &  Albany  Railroad,  171  Mass. 
536,  furnishes  an  illustration  of  the  former  class  of  cases,  and  the  case 
of  Lane  v.  Atlantic  Works,  111  Mass.  136,  of  the  latter. 

It  is  clear  that  the  plaintiff  Rachel  was  in  the  exercise  of  due  care. 
But  assuming  that  the  reel  was  left  in  the  highway  and  that  that  was 
some  evidence  of  negligence,  we  think  that  such  negligence  was  the 
remote  and  not  the  direct  and  proximate  cause  of  the  plaintiff  Rachel's 
injury.  The  material  facts  with  the  inferences  to  be  drawn  from 
them  are  not  in  dispute,  and  in  such  a  case  the  question  of  remote  or 
proximate  cause  is  one  of  law  for  the  court.  Stone  v.  Boston  &  Albany 
Railroad,  171  Mass.  536,  543.  McDonald  v.  Snelling,  14  Allen,  290, 
299.  Hobbs  v.  London  &  Southwestern  Railway,  L.  R.  10  Q.  B.  Ill, 
122.  The  defendant's  servants  left  the  reel  in  a  secure  position  lying 
on  its  side  in  the  grass  outside  the  traveled  part  of  the  street,  and  not 
in  immediate  proximity  to  it.  As  the  reel  was  left  it  was  entirely 
safe.  It  was  not  possible  for  a  slight  or  accidental  movement  to  set  it  in 
motion  so  as  to  injure  others,  as  in  the  case  of  Lane  v.  Atlantic  Works, 
ubi  supra.  The  reel  was  large  and  cumbersome  and  required  active 
effort  on  the  part  of  a  mmiber  of  children  to  move  it,  from  the  place 
where  it  had  been  left,  on  to  the  traveled  part  of  the  highway,  and  set 
it  in  motion.  And  in  order  to  injure  the  plaintiff  or  any  other  traveler 
on  the  highway  it  was  necessary  that  it  should  be  set  in  motion  at  a 
time  when  the  plaintiff  or  other  travelers  were  passing  along  the  high- 
way. In  other  words,  in  order  to  render  the  defendant  liable,  it  must 
appear,  not  only  that  it  should  have  anticipated  that  in  the  ordinary 
course  of  events  school  children  would  take  the  reel  from  the  position 
where  it  had  been  securely  left  outside  the  traveled  part  of  the  road, 
but  that  they  would  set  it  in  motion  on  the  highway  under  such  cir- 
cumstances that  it  was  liable  to  injure  a  traveler  thereon.  It  seems 
to  us  that,  conceding  that  there  was  evidence  of  negligence  on  the  part 
of  the  defendant  in  leaving  the  reel  where  its  servants  did,  they  could 
not  be  required  to  anticipate  that  this  would  happen  in  the  ordinary 
course  of  events,  and,  therefore,  that  the  negligence  was  too  remote. 
See  Speake  v.  Hughes  (1904),  1  K.  B.  138. 

Exceptions  overruled. 


362      DANNENHOWER  V.  WESTEKN  UNION  TELEGRAPH  CO.      [CHAP.  III. 


DANNENHOWER   v.    WESTERN   UNION   TELEGRAPH    CO. 
Supreme  Court  of  Pennsylvania,  1907. 

[Reported  218  Pa.  216.] 

Fell,  J.  An  unused  telegraph  wire,  which  it  was  alleged  belonged  to 
the  defendant  or  was  under  its  control,  fell  across  an  electric  light  feed 
wire  of  the  Northern  Electric  Light  Company.  The  telegraph  wire 
had  been  connected  with  a  call-box  which  had  been  removed  some 
months  before  the  accident.  The  wive  had  fallen  three  or  four  weeks 
before.  One  end  of  it  extended  down  so  near  the  pavement  that  chil- 
dren reached  and  played  with  it;  the  other  end  was  WTapped  around  an 
iron  pole.  The  deceased  was  a  trimmer  in  the  employ  of  the  electric 
light  company,  and  was  killed  by  an  electric  shock  while  engaged  in 
placing  carbons  in  a  lamp  attached  to  the  pole. 

A  reversal  of  the  judgment  for  the  plaintiff  is  asked  on  the  grounds 
(1)  that  there  was  no  sufficient  eWdence  that  the  telegraph  wire  be- 
longed to  the  defendant  or  was  under  its  control;  (2)  that  the  falling 
of  the  ware  was  not  the  proximate  cause  of  the  accident;  (3)  that  the 
presence  of  the  wire  and  the  danger  because  of  its  contact  with  the 
electric  light  vnre  must  have  been  known  to  the  deceased  as  he  ascended 
the  pole. 

That  the  wire  was  controlled  by  the  defendant  was  not  questioned 
at  the  trial,  and  while  there  was  no  direct  proof  of  its  owTiership, 
there  was  proof  that  it  had  been  connected  with  a  Western  Union  call- 
box,  and  the  defendant  put  in  e\'idence  a  blue  print,  made  the  day  after 
the  accident,  on  which  the  wire  was  marked  "  W.  U.  Telegraph  wire." 
This  by  way  of  admission  supplied  any  defect  in  the  formal  proof  of 
ownership.  There  was  e\'idence  that  children  had  been  pulling  on  the 
loose  end  of  the  telegraph  wire  and  that  the  electric  light  wire  on 
which  it  rested  had  sagged  and  there  were  burned  marks  on  the  frame 
of  the  lamp.  Sparks  had  been  emitted  by  the  telegraph  wire  two  weeks 
before  the  accident.  Two  theories  of  the  cause  of  the  accident  were  ad- 
vanced at  the  trial.  That  of  the  plaintiff  was  that  the  deceased  came 
in  contact  with  the  telegraph  wire  which  had  been  charged  by  its  con- 
tact with  the  electric  light  wire;  that  of  the  defendant  that  he  came 
in  contact  with  the  frame  of  the  lamp  which  was  charged  from  the 
electric  wire  which  had  been  pulled  down  and  brought  in  contact  with  it. 
If  the  latter  theory  were  correct,  it  would  not  follow  that  the  defendant 
was  relieved  of  responsibility,  because  it  was  its  wire  that  either  caused 
the  sagging  of  the  electric  light  wire  by  dragging  it  down  or  was  the 
means  by  which  children  drew  it  down.  The  latter  was  a  consequence 
to  be  foreseen  and  guarded  against  and  it  did  not  break  the  causal 
connection  between  the  defendant's  negligence  and  the  injury.    A  neg- 


II 


SECT,    v.] 


BINFORD    V.   JOHNSTON. 


363 


ligent  act  may  be  the  proximate  cause  of  an  injury  although  not  the 
sole  nor  immediate  cause,  where  the  intervening  act  is  set  in  motion  or 
induced  by  the  negligent  act  and  the  consequence  is  one  that  should 
have  been  foreseen.  In  Marsh  v.  Giles,  211  Pa.  17,  relied  on  by  the  ap- 
pellant, the  injury  to  the  plaintiflf  was  caused  by  the  unrelated  act  of  a 
third  party  and  was  not  a  probable  consequence  of  the  defendant's 
wrongful  act. 

The  questions  of  proximate  cause  under  the  conflicting  testimony 
and  of  contributory  negligence  were  properly  submitted.  As  to  the 
latter  there  was  no  evidence  that  the  deceased  had  not  taken  reasonable 
care  to  avoid  every  danger,  knowledge  of  which  could  be  imputed  to 
him. 

The  judgment  is  affirmed. 


BINFORD  V.  JOHNSTON.  f^l  ^  7    ,) 

Supreme  Court  of  Indiana,  1882. 

[Reported  82  Ind.  426.] 
The  case  made  by  the  appellee's  complaint,  briefly      ii"-\ 


Elliott,  J. 
stated,  is  this:  Two  sons  of  appellee,  Allen  and  Todd,  aged  twelve 
and  ten  years  respectively,  bought  of  the  appellant,  a  dealer  in  such 
articles,  pistol  cartridges  loaded  with  powder  and  ball.  The  boys 
purchased  the  cartridges  for  use  in  a  toy  pistol,  and  were  instructed 
by  appellant  how  to  make  use  of  them  in  this  pistol ;  the  appellant  knew 
the  dangerous  character  of  the  cartridges,  knew  the  hazard  of  using 
them  as  the  boys  proposed,  and  that  the  lads  were  unfit  to  be  entrusted 
with  articles  of  such  a  character;  shortly  after  the  sale,  the  toy  pistol, 
loaded  with  one  of  the  cartridges,  was  left  by  Allen  and  Todd  lying 
on  the  floor  of  their  home.  It  was  picked  up  by  their  brother  Bertie, 
who  was  six  years  of  age,  and  discharged,  the  ball  striking  Todd  and 
inflicting  a  wound  from  which  he  died. 

A  man  who  places  in  the  hands  of  a  child  an  article  of  a  dangerous       | 
character  and  one  likely  to  cause  injury  to  the  child  itself  or  to  others,       I 
is  guilty  of  an  actionable  wrong.     If  a  dealer  should  sell  to  a  child       I 
dynamite,  or  other  explosives  of  a  similar  character,  nobody  would      1 
doubt  that  he  had  committed  a  wrong  for  which  he  should  answer,  in      / 
case  injury  resulted.     So,  if  a  druggist  should  sell  to  a  child  a  deadly     I 
drug,  likely  to  cause  harm  to  the  child  or  injury  to  others,  he  would   J 
certainly  be  Hable  to  an  action. 

The  more  difficult  question  is  whether  the  result  is  so  remote  from 
the  original  wrong  as  to  bring  the  case  within  the  operation  of  the 
maxim  causa  proxima,  et  non  reniota,  spedatur.  It  is  not  easy  to  assign 
limits  to  this  rule,  nor  to  lay  down  any  general  test  which  will  enable 
courts  to  determine  when  a  case  is  within  or  without  the  rule.    It  is 


aM. 


364  BINFOED   V.    JOHNSTON.  [CIIAP.  III. 

true  that  general  formulas  have  been  frequently  stated,  but  these  have 
carried  us  but  little,  if  any,  beyond  the  meaning  conveyed  by  the  words 
of  the  maxim  itself. 

The  fact  that  some  agency  intervenes  between  the  original  wrong 
and  the  injury  does  not  necessarily  bring  the  case  within  the  rule;  on 
the  contrary,  it  is  firmly  settled  that  the  intervention  of  a  third  per- 
son or  of  other  and  new  direct  causes  does  not  preclude  a  recovery  if  the 
injury  was  the  natural  or  probable  result  of  the  original  wrong.  Bill- 
man  V.  Indianapolis,  etc.,  R.  R.  Co.,  76  Ind.  166  (40  Am.  R.  230). 
This  doctrine  remounts  to  the  famous  case  of  Scott  v.  Shepherd,  2 
W.  Black.  892,  commonly  known  as  the  "  Squib  case."  The  rule  goes 
so  far  as  to  hold  that  the  original  wrongdoer  is  responsible,  even  though 
the  agency  of  a  second  WTongdoer  intervened.  This  doctrine  is  en- 
forced with  great  power  by  Cockburn,  C.  J.,  in  Clark  v.  Chambers, 
7  Cent.  L.  J.  11;  and  is  approved  by  the  text-writers.  Cooley  Torts,  70; 
Addison  Torts,  section  12. 

Although  the  act  of  the  lad  Bertie  intervened  between  the  original 
wrong  and  the  injury,  we  cannot  deny  a  recovery  if  we  find  that  the 
injury  was  the  natural  or  probable  result  of  appellant's  original  MTong. 
In  Henry  v.  Southern  Pacific  R.  R.  Co.,  50  Cal.  176,  it  was  said:  "A 
long  series  of  judicial  decisions  has  defined  proximate,  or  immediate  and 
direct  damages  to  be  the  ordinary  and  natural  results  of  the  negligence; 
such  as  are  usual  and  as,  therefore,  might  have  been  expected."  Lord 
EUenborough  said  in  Townsend  v.  Wathen,  9  East,  277,  that  "Every 
man  must  be  taken  to  contemplate  the  probable  consequences  of  the 
act  he  does."  In  Billman  v.  Indianapohs,  etc.,  R.  R.  Co.,  supra,  very 
many  cases  are  cited  declaring  and  enforcing  this  doctrine,  and  we 
deem  it  unnecessary  to  here  repeat  the  citations.  Under  the  rule  de- 
clared in  the  cases  referred  to,  it  is  clear  that  one  who  sells  dangeroils 
ex-plosives  to  a  child,  knowing  that  they  are  to  be  used  in  such  a  manner 
as  to  put  in  jeopardy  the  lives  of  others,  must  be  taken  to  contemplate 
the  probable  consequences  of  his  wrongful  act.  It  is  a  probable  con- 
sequence of  such  a  sale  as  that  charged  against  appellant,  tliat  tlic 
explosives  may  be  so  used  by  children,  among  whom  it  is  natural jto 
expect  that  they  will  be  taken,  as  to  injure  the  buyers  or  their  associates. 
A  strong  illustration  of  the  principle  here  affirmed  is  afforded  by  the 
case  of  Dixon  v.  Bell,  5  M.  &  S.  198.  In  that  case  the  defendant  sent  a 
child  for  a  loaded  gun,  desiring  that  the  person  who  was  to  deliver  it 
should  take  out  the  priming.  This  was  done;  but  the  gun  was  dis- 
charged by  the  imprudent  act  of  the  child,  the  plaintiff  injured,  and  it 
was  held  that  the  defendant  was  liable.  In  Lynch  v.  Nurdin,  1  Q.  B. 
29,  the  doctrine  of  the  case  cited  was  approved,  and  the  same  judgment 
has  been  pronounced  upon  it  by  other  courts  as  well  as  by  the  text- 
writers.  Carter  v.  Towne,  98  Mass.  567;  Wharton  Neg.  851 ;  Shearman 
&  Redf.  Neg.,  3d  ed.,  596.i 

'  The  remainder  of  the  opinion  is  omitted.  —  Ed. 


SECT,  v.]  CHADDOCK    V.    PLUMMER.  365 


CHADDOCK   V.  PLUMMER. 
Supreme  Court  of  Michigan,  1891. 

[Reported  88  Mick.  225.] 

Morse,  J.  Plaintiff  brought  this  suit  in  the  Berrien  Circuit  Court 
to  recover  damages  for  the  loss  of  his  right  eye,  which  was  destroyed 
by  a  shot  from  an  air-gun  in  the  hands  of  a  boy  named  Roscoe  Tabor. 
The  Circuit  Judge  directed  a  verdict  for  the  defendant.  f,  ,   A 

The  facts  proven  are  substantially  as  follows:     During  the  last  of  '  f 

July  or  first  of  August,  1890,  the  defendant  bought  an  air-gun,  and  gave     .  /j 

it  to  his  son,  Harry  Plummer,  a  lad  aged  about  nine  years.    Defendant  "^^-^r  ^^-^  V 
also  bought  at  the  same  time  some  shot,  such  as  are  used  in  air-guns.  '' 
Defendant  cautioned  his  son  to  be  careful  in  using  the  gun.    The  shot 
were  all  used  in  about  two  days,  and  some  time  later  defendant  bought ''>>ve^/ 
his  son  more  shot,  which  were  used  in  half  a  day.    No  other  shot  were  A^Mr\  '6:    -> 
bought  or  furnished  by  the  defendant,  or  by  his  order,  or  with  his 
knowledge.    Mrs.  Plummer,  the  wife  of  the  defendant,  bought  her  son 
Harry  some  shot,  wliich  he  also  fired,  except  four  shot,  by  one  of  which 
plaintiff  was  injured.     On  the  morning  of  the  accident,  September  3,  H 

1890,  Harry  fired  the  shot  bought  by  his  mother,  except  the  four  shot,    '  i_ 

and  put  the  gun  in  the  storm  house,  which  was  a  part  of  the  dwelling,  '  y^j 

and  then  put  the  four  shot  on  a  tablecloth,  and  went  to  school.  Mr.  , 
Plummer  was  not  at  home.  The  Tabor  boy  came  there  with  some 
rutabagas,  and  began  looking  and  traveling  about  the  premises,  and 
found  the  gun  in  the  storm  house,  and  then  asked  Mrs.  Plummer  for 
some  shot,  and  she  handed  him  the  four  shot  which  Harry  had  left  on 
the  table.  She  directed  him  to  shoot  at  the  hen-coop  in  the  rear  of 
the  house.  The  boy  fired  one  shot  at  the  hen-coop,  one  at  an  apple 
tree,  and  then  he  went  around  to  the  north  side  of  a  new  house,  which 
Mr.  Plummer  was  building,  to  a  point  about  a  rod  east  of  the  front  of 
the  new  house,  and  eight  or  ten  feet  north  of  it.  The  boy  was  facing  the 
west,  and  the  street  was  to  the  west  of  him,  and  the  street  runs  north- 
west and  southeast.  He  put  a  grape  on  a  plank,  and  looked  to  see  if 
anyone  was  in  the  street,  and,  seeing  no  one,  he  held  the  muzzle  of  the 
gun  about  two  and  one  half  feet  from  the  grape,  and  the  gun  was  pointed 
down,  and  fired.  The  distance  west  to  the  street  from  where  the  boy 
was  when  he  shot  is  from  seventy  to  one  hundred  feet.  Mr.  Chaddock 
at  the  time  the  shot  was  fired  was  standing  in  the  street,  looking  at  this 
new  house  of  the  defendant.  The  shot  glanced  from  the  board,  and 
struck  him  in  the  eye,  destroying  it.  The  street  was  a  frequently 
traveled  highway  in  the  village  of  Benton  Harbor,  then  containing 
about  3700  inhabitants,  and  at  a  point  where  defendant  had  long  re-  ^ 


366  CHADDOCK    V.    PLUMMER.  [CHAP.  III. 

sided.  Defendant's  boy  Harry  was  nine  years  of  age  when  the  gun  was 
purchased,  and  the  Tabor  boy  was  ten  years  old  when  the  shot  was  fired. 
The  gun  was  the  common  make  of  toy  air-gun  for  children,  breaking 
in  the  middle  for  the  insertion  of  the  shot,  and,  when  closed  again,  oper- 
ating with  a  spring,  compressing  the  air  and  expelling  the  shot.  The 
shot  used  were  "BB,"  or  "double  B."  Harry  was  told  by  his  father 
not  to  lend  the  gun  to  other  boys,  as  they  might  break  it.  The  Tabor 
boy  lived  out  in  the  country,  and  occasionally  \nsited  at  defendant's. 
It  does  not  appear  that  the  defendant  knew  of  the  purchase  of  shot  by 
his  wife,  or  that  his  boy  had  used  all  the  shot  purchased  for  him  by 
defendant. 

The  contention  of  the  plaintiff  is  that  the  air-gun  in  question  is  a 
dangerous  weapon,  and  that  the  defendant  did  not  use  sufficient 
care  in  the  keeping  of  it  upon  his  premises;  that,  at  any  rate,  the  ques- 
tion whether  he  did  use  such  care  or  not  should  have  been  submitted 
to  the  jury.  But,  as  the  facts  are,  the  defendant  cannot  be  held  respon- 
sible for  the  injury  to  plaintiff,  unless  it  was  negligence,  sufficient 
to  support  this  action,  in  buying  the  gun  and  allowing  his  son  to  use 
it.  He  cannot  be  considered  negligent  in  any  other  respect.  He  cau- 
tioned his  boy  to  be  careful  in  its  use,  and  no  carelessness  of  his  own 
son  was  shown  at  any  time  in  his  use  of  it.  The  defendant  and  his 
son  were  neither  of  them  responsible  in  any  way,  except  owning  the 
gun,  for  the  use  of  it  by  the  Tabor  boy.  It  was  kept  inside  the  house, 
for  the  storm  door  was  an  inclosure.  If  it  came  into  the  hands  of  Tabor 
through  the  negligence  of  anyone,  it  was  the  negligence  of  the  wife,  for 
which  the  defendant  is  not  liable. 

This  air-gun  may  be  a  dangerous  weapon  in  a  certain  sense.  The  shot 
fired  from  it  will  not  penetrate  clothing,  but  it  will  put  out  the  eye  of  a 
person,  and  will  kill  small  birds  and  some  small  animals.  These  guns 
are  in  common  and  everyday  use  by  children;  over  four  hundred  of 
them  were  sold  in  one  season  by  a  dealer  at  Benton  Harbor.  But  it  is 
not  more  dangerous  in  the  hands  of  children  than  a  bow  and  arrow  and 
many  other  toys.  It  would  hardly  be  good  sense  to  hold  that  this  air- 
gun  is  so  ob\aously  and  intrinsically  dangerous  that  it  is  negligence  to 
put  it  in  the  hands  of  a  child  nine  years  of  age,  and  that  such  negligence 
would  make  the  person  so  putting  it  in  the  hands  of  the  child  respon- 
sible for  the  act  of  another  child,  getting  possession  of  it  without  de- 
fendant's consent  or  knowledge.  Even  if  the  gun  had  been  left  lying 
on  the  ground  in  the  yard  of  the  defendant,  and  the  Tabor  boy  had 
picked  it  up  outside  the  house,  and  used  it,  the  defendant  would  not 
have  been  responsible  for  the  damage  done  by  the  boy.  An  axe  is 
considered  a  dangerous  weapon,  but  if  one  leaves  an  axe  by  his  wood- 
pile, and  a  child  comes  into  the  yard,  picks  it  up,  and  injures  another 
with  it,  is  the  owner  of  the  axe  liable  for  damage  because  he  has  not 
put  this  deadly  weapon  under  lock  and  key? 

And  if  it  be  granted  that  this  air-gun  loaded  is  a  dangerous  weapon. 


II 


SECT,  v.]  PITTSBURG   KEDUCTION    CO.    V.    HORTON.  367 

as  is  a  gun  loaded  with  powder  and  ball,  would  this  fact  make  the  de- 
fendant liable?  I  think  not.  Suppose  a  person,  owning  a  shotgun, 
should  put  the  same  unloaded  within  the  storm  house  of  his  door,  and 
a  neighbor's  boy,  10  years  of  age,  without  the  knowledge  or  consent  of 
the  owner,  should  pick  up  the  gun,  and  obtain  from  the  wife  or  some 
other  member  of  the  household  a  loaded  cartridge,  and  take  the  gun 
out  and  discharge  it,  accidentally  wounding  someone,  would  the 
owner  of  the  gun  be  responsible  for  the  damage  resulting  to  the  injured 
person?  To  so  hold  him  responsible  would  necessitate  the  keeping  of 
unloaded  firearms  under  lock  and  key,  with  the  key  in  the  possession 
at  all  times  of  the  owner.  This  is  not  a  case  of  lea\-ing  a  torpedo  or 
dynamite  where  it  may  be  expected  that  children  will  find  and  play  with 
it.  An  unloaded  gun  is  harmless;  a  torpedo  or  dynamite  is  not,  but 
is  dangerous  anywhere,  and  under  all  circumstances,  to  those  not  ac- 
quainted with  the  proper  method  of  handling  it,  and  liable  to  explode 
even  in  the  hands  of  those  who  are  expert  in  using  it. 

In  my  opinion,  it  was  not  negligence  per  se  for  the  defendant  to  buy 
this  toy  gun,  and  place  it  in  the  hands  of  his  boy  nine  years  of  age; 
and  there  were  too  many  intervening  causes  without  the  act  or  knowl- 
edge of  the  defendant,  between  the  buying  of  the  gun  and  the  injury, 
to  hold  the  defendant  liable  for  its  use  in  this  case.  If  his  own  son  had, 
in  any  manner,  contributed  to  the  accident,  a  different  question  would 
arise,  upon  which  I  express  no  opinion. 

The  judgment  must  be  affirmed,  with  costs. 

The  other  justices  concurred.^ 


PITTSBURG  REDUCTION  CO.   v.   HORTON. 
Supreme  Court  of  Arkansas,  1908. 

[Reported  87  Ark.  576.] 

This  was  an  action  brought  by  John  A.  Horton,  by  his  next  friend 
S.  A.  Horton,  against  the  Pittsburg  Reduction  Company  and  C.  C. 
Brazil,  to  recover  damages  for  an  injury  sustained  by  him  caused  by 
the  explosion  of  a  dynamite  cap  in  his  left  hand. 

The  cap  which  did  the  damage  was  picked  up  by  Charlie  Copple, 
a  boy  about  10  years  of  age,  at  the  edge  of  the  spur  track  near  the  end 
of  the  toolhouse  of  appellant  company.  The  caps  were  in  a  tin  snuff 
box  and  were  made  of  brass  or  copper.  They  were  very  much  like 
small  metal  cartridges  and  appeared  to  be  empty  except  of  dirt.  The 
Copple  boy  picked  them  up  on  his  way  home  from  school  and  carried 
them  home.     He  lived  with  his  parents  about  one-fourth  of  a  mile 

'  See  also  Harris  v.  Cameron,  81  Wis.  239.  —  Ed. 


M^* 


368  PITTSBURG   REDUCTION   CO.   V.    HORTON.  [CHAP.  III. 

distant.     His  father  was  an  employee  of  another  company,  which  had 

a  plant  for  mining  bau.xite  near  that  of  appellant  company.     Charlie 

Copple  kept  the  caps  at  home  for  about  one  week,  playing  on  the  floor 

with  them  in  the  presence  of  his  parents.    When  he  would  leave  them 

on  the  floor,  his  mother  said  she  would  pick  them  up.     She  said  she 

did  not  know  what  they  were.     She  said  that  Charlie  Copple  had 

them  there  in  the  house,  and  that  she  supposed  her  husband  noticed 

him  with  them.    The  father  denied  knowing  that  his  boy  had  the  caps 

until  he  heard  of  it  after  the  accident  happened.     Charlie  Copple 

\  '  U"         I  ^^^'^  that,  when  not  pla\nng  with  them,  they  were  left  on  the  clock 

J[/J,  '  shelf.    About  one  week  after  he  had  found  them,  Charlie  carried  them 

'     fi    'f  ;i.    /to  school  and  traded  them  to  Jack  Horton  for  some  writing  paper. 

A      '  '   "-^  'jacjj  Horton  was  a  boy  13  years  old.    He  was  in  the  schoolhouse  at  the 

A.^A/■'-  '^  time  he  was  hurt.    He  said  he  thought  it  was  a  .shell  of  a  22  cartridge 

j  *  that  had  been  shot;  that  he  was  picking  the  dirt  out  of  it  with  a  match 

when  it  exploded  and  tore  up  his  hand.     His  hand  was  torn  so  that 

it  had  to  be  amputated. 

There  is  a  great  deal  of  testimony  relative  to  the  manner  by  which 
the  caps  came  on  the  spur  track,  where  Charlie  Copple  picked  them 
up,  but  the  view  we  have  taken  of  the  case  renders  it  unnecessary  to 
abstract  it,  except  to  say  that  it  may  be  assumed  that  appellant  C.  C. 
Brazil,  the  general  foreman  of  appellant  company,  threw  them  there 
from  the  toolhouse  thinking  they  were  empty. 

There  was  a  jury  trial  and  a  verdict  against  both  appellants  for 
S2,000.     They  have  appealed  to  this  court. 

Hart,  J.  (after  stating  the  facts).  It  is  a  well-.settled  general  rule 
that,  when  a  defendant  has  ^^olated  a  duty  imposed  upon  him  by  the 
common  law,  he  should  be  held  to  be  liable  to  every  person  injured 
whose  injury  is  the  natural  and  probable  consequence  of  the  misconduct. 
Hence  in  our  consideration  of  this  case  we  are  first  met  with  the  prop- 
osition of  whether  or  not  the  negligence  of  appellants  in  leaving  the 
dynamite  caps  near  the  spur  track,  which  was  frequented  by  children, 
■was  the  proximate  cause  of  the  injury.  As  was  said  by  this  court  in 
the  case  of  Martin  v.  Railway  Co.,  55  Ark.  510,  19  S.  \V.  314,  and 
later  approved  in  the  case  of  James  v.  James,  58  Ark.  157,  23  S.  W.  1099, 
there  must  be  a  direct  connection  between  the  neglect  of  the  defend- 
ant and  the  injury;  that  its  connection  must  be  something  more 
than  one  of  a  series  of  antecedent  events  without  which  the  injury 
would  not  have  happened. 

It  is  a  well-settled  general  rule  that,  if,  subsequent  to  the  original 
negligent  act,  a  new  cause  has  intervened,  of  itself  sufficient  to  stand 
as  the  cause  of  the  injury,  the  original  negligence  is  too  remote.  The 
difficulty  arises  in  each  case  in  applying  the  principle  to  a  given  state 
of   facts. 

Counsel  for  appellee  mainly  rely  upon  the  case  of  Harriman  v. 
Pittsburg,  C.  &  St.  L.  R.  Co.,  45  Ohio  St.  11,  12  N.  E.  451,  4  Am.  St. 


SECT,  v.]  PITTSBURG   REDUCTION   CO.    V.    HORTON.  369 

Rep.  507,  to  establish  their  contention  that  the  negligence  of  the 
appellants  in  lea\'ing  the  caps  on  the  spur  track  was  the  proximate 
cause  of  the  injury.  Other  cases  are  cited  by  them  to  sustain  their 
position,  but  they  chiefly  turn  upon  the  question  of  the  contributory 
negligence  of  the  plaintiff. 

The  facts  and  the  gist  of  the  holding  of  the  court  in  the  Harriman 
Case  are  fairly  stated  in  the  syllabus,  which  is  as  follows : 

"A  train  of  cars,  passing  over  some  signal  torpedoes,  left  one  un- 
exploded  which  was  picked  up  by  a  boy  nine  years  old,  at  a  point 
on  the  track  which  he  and  other  children,  in  common  with  the  general 
public,  had  long  been  accustomed  to  use  as  a  crossing,  with  the  knowl- 
edge and  without  the  disapproval  of  the  company.  He  carried  it 
into  a  crowd  of  boys  near  by,  and,  not  knowing  what  it  was,  attempted 
to  open  it.  It  exploded  and  injured  the  plaintiff,  a  boy  10  years  of 
age.  Held,  that  the  act  of  the  boy  who  picked  up  the  torpedo  was  only 
a  contributory  condition,  which  the  company's  servants  should  have 
anticipated  as  a  probable  consequence  of  their  negligence  in  leaving 
the  torpedo  where  they  did,  and  that  that  negligence  was  the  direct 
cause  of  the  injury  suffered  by  the  plaintiff." 

There  the  child  did  a  perfectly  natural  thing  for  a  boy  to  do.  He 
found  what  appeared  to  be  an  attractive  plaything.  He  at  once  car- 
ried it  over  to  his  playmates  and  exhibited  it  to  them.  He  then  began 
to  try  to  open  it  so  that  they  might  learn  what  it  contained.  In  doing 
this  the  explosion  occurred  which  caused  the  injury.  The  result  was 
the  natural  sequence  of  antecedent  events,  and  ought  to  have  been  an- 
ticipated by  any  person  of  ordinary  care  and  prudence.  In  the  present 
case,  the  facts  are  practically  undisputed.  Charlie  Copple's  father  was 
an  employee  of  a  company  engaged  in  a  similar  business  to  that  of  ap- 
pellant company.  Naturally,  his  avocation  and  the  proximity  of  his 
residence  to  the  mines  made  both  himself  and  his  wife  familiar  with  the 
nature  of  explosives.  True,  Mrs.  Copple  says  that  she  did  not 
know  what  the  shells  contained,  but  she  did  know  that  they  were 
shells  for  some  kind  of  explosives,  that  her  son  brought  them  home, 
and  that  he  played  with  them.  She  achnits  that,  when  he  would 
leave  them  on  the  floor,  she  would  pick  them  up  and  lay  them 
away  for  him.  This  continued  for  a  week,  and  then,  with  her  knowl- 
edge, he  carried  them  to  school.  Her  course  of  conduct  broke  the 
causal  connection  between  the  original  negligent  act  of  appellant  and  the 
subsequent  injury  of  the  plaintiff.  It  established  a  new  agency,  and 
the  possession  by  Charlie  Copple  of  the  caps  or  shells  was  thereafter 
referable  to  the  permission  of  his  parents,  and  not  to  the  original  tak- 
ing^ Charlie  Copple's  parents  ha\ang  permitted  him  to  retain  posses- 
sion of  the  caps,  his  further  acts  in  regard  to  them  must  be  attributable 
to  their  permission  and  were  wholly  independent  of  the  original  negli- 
gence of  appellants.  This  is  but  an  application  of  the  well-established 
general  rule  that,  to  charge  a  person  with  liability  for  damages,  the 


a? 


370  OLSON    V.    GILL   HOME    INVESTMENT   CO.  [CHAP.  III. 

negligence  alleged  must  be  found  to  have  been  the  proximate  cause  of 
the  injury  to  the  plaintiff. 

This  case  has  given  us  much  concern,  and  we  have  reviewed  many 
cases  illustrating  the  application  of  the  general  rule.  It  is  useless  to 
review  them,  for  most  of  them  recognize  and  approve  the  general  rule, 
and,  as  the  facts  in  each  case  are  different,  a  re^^ew  of  them  would 
add  nothing  to  the  opinion.  The  leading  cases  on  the  subject  are  cited 
in  the  respective  briefs  of  the  attorneys  in  this  case. 

As  above  stated,  the  evidence  speaking  on  the  question  is  undisputed, 
and,  having  determined  that  the  intervening  act  of  Charlie  Copple's 
parents  in  permitting  him  to  retain  in  his  possession  the  caps  broke 
the  causal  connection  between  the  original  wrongful  act  of  appellants 
and  the  subsequent  injury  of  the  plaintiff,  there  is  nothing  to  submit 
to  the  jury. 

The  judgmeiit  is  therefore  reversed,  and  the  cause  dismissed. 

Wood,   J.,   not  participating.^ 


OLSON  V.   GILL  HOME  INVESTMENT  CO. 
Supreme  Court  of  Washington,  1910. 

[Reported  58  Wash.  151.] 

Crow^,  J.  This  action  was  commenced  by  Ernest  Olson,  a  minor, 
by  M.  E.  Olson,  his  guardian  ad  litem,  against  Gill  Home  Investment 
Company,  a  corporation,  and  Clark  N.  Gill,  its  president  and  manager, 
to  recover  damages  for  personal  injuries.  From  a  judgment  in  plain- 
tiff's favor,  the  defendants  have  appealed. 

The  appellant  Gill  Home  Investment  Company  was  engaged  in 
selling  an  addition  to  the  city  of  Tacoma,  and  was  itself  owner  of  four 
unfenced  lots  therein,  located  at  the  intersection  of  two  public  streets. 
A  small  building  constructed  for  toilet  purposes  was  located  on  these 
lots,  al)out  one  hundred  and  twenty-five  feet  from  one  street  and  thirty- 
nine  feet  from  the  other.  A  board  screen  or  wall,  about  six  feet  high, 
was  in  front  of  the  unlocked  toilet  door.  Between  the  toilet  and  the 
nearest  street  was  a  small  tool  house.  Some  weeks  prior  to  the  accident 
which  caused  respondent's  injuries,  the  appellant  corporation  com- 
menced the  construction  of  a  cement  building,  and  Clark  N.  Gill,  its 
president  and  manager,  caused  a  box  and  several  loose  sticks  of  Her- 
cules stumping  powder  (hereinafter  called  dynamite,  a  term  used 
by  the  witnesses),  to  be  removed  from  the  tool  house  and  stored  on  a 
shelf  in  the  toilet,  doing  so  to  protect  workmen  who  went  into  the 
tool  house.  The  shelf  was  located  on  plates  upon  which  the  rafters 
rested,  about  six  feet  eight  inches  above  the  floor  and  five  feet  eight 

1  See  also  Pollard  r.  Oklahoma  City  Ry.,  36  Okl.  96,  128  Pac.  300.  — Ed. 


SECT,  v.]  OLSON   V.    GILL    HOME    INVESTMENT   CO.  371 

inches  above  the  seat  of  the  toilet.  The  toilet  door  was  left  unlocked, 
A  pile  of  sand,  attractive  to  children  but  designed  for  use  in  mixing 
concrete,  was  kept  on  appellants'  lots  near  the  toilet.  A  public  school 
was  about  three  blocks  distant.  Several  residences,  the  homes  of 
children,  were  located  in  the  \acinity.  A  number  of  young  school  boys, 
including  the  respondent,  were  in  the  habit  of  playing  upon  appellants' 
lots.  They  occasionally  visited  and  used  the  toilet,  as  did  other  per- 
sons, most  of  whom  were  appellants'  employees.  One  of  the  boys, 
Wesley  Depew,  nearly  fourteen  years  of  age,  discovered  the  box 
and  loose  sticks  of  dynamite  and  told  his  twin  brother  Leslie  Depew 
of  such  discovery.  On  a  Sunday  prior  to  the  accident,  Leslie  Depew, 
with  two  younger  boys,  went  to  the  toilet  and  took  a  loose  stick  of 
dynamite  which  they  hid  under  a  stump.  Wesley  Depew  had  previ- 
ously taken  some  dynamite  caps  and  fuses  which  he  says  he  found  in 
the  toilet.  He  exploded  one  of  these  caps  and  gave  some  of  them 
to  the  respondent,  who  was  then  about  thirteen  years  of  age.  On 
the  day  of  the  accident,  Leslie  Depew  and  two  other  boys,  accompan- 
ied by  respondent,  took  the  .dynamite,  caps  and  fuse,  to  some  vacant 
ground  one-fourth  of  a  mile  distant,  where  respondent  attached  a  cap 
and  fuse  to  the  stick  of  dynamite,  and  igniting  it,  unsuccessfully  tried 
to  explode  it  under  a  large  stump.  He  then  attempted  to  explode  it 
with  a  lighted  paper,  but  again  failing,  undertook  to  remove  the  cap 
by  prying  it  from  the  dynamite  with  a  stick.  This  produced  an  un- 
expected explosion  which  caused  respondent  to  lose  both  of  his  hands. ^ 

Appellants,  citing  many  authorities,  further  contend  that  their  neg- 
ligence, if  conceded,  was  not  the  proximate  cause  of  the  accident,  but 
that  the  intervening  criminal  act  of  the  boys  in  stealing  the  dynamite, 
caps  and  fuse,  and  their  subsequent  acts  in  attempting  to  explode 
the  same,  were  the  proximate  cause.  In  an  action  for  damages  result- 
ing from  negligence,  the  defendant  will  be  held  liable  for  the  natural  and 
probable  consequences  of  his  negligent  acts.  To  create  such  a  liability 
the  injury  complained  of  must  result  from  the  negligence  charged,  which 
will  not  be  considered  as  too  remote  if  the  resulting  accident  might 
have  been  reasonably  anticipated.  The  act  of  an  intervening  third 
party,  contributing  to  the  injurious  result  of  the  original  negligence, 
does  not,  in  all  cases,  excuse  the  original  wrongdoer.  If  such  inter- 
vening act  could,  or  in  the  exercise  of  ordinary  prudence  should,  have 
been  foreseen,  the  original  act  still  remains  the  proximate  cause  of 
the  injury.  In  this  case  it  was  for  the  jury  to  determine  whether 
the  appellants  who  carelessly  and  illegally  stored,  and  it  might  be  said 
abandoned,  a  dangerous  explosive,  should  have  anticipated  that  it 
might  come  into  the  possession  of  young  boys  who  frequented  the 
place,  even  though  they  were  trespassers. 

"  In  addition  to  the  requirement  that  the  result  should  be  the  natural 

*  Part  of  the  opinion  is  omitted.  In  it  the  Court  decided  that  the  jury  were  justi- 
fied in  finding  the  defendant  negligent. —  Ed. 


372  OLSON   V.    GILL   HOME    INVESTMENT   CO.  [CHAP.  III. 

and  probable  consequence  of  the  negligence  it  is  commonly  stated 
that  the  consequence  should  be  one  which  in  the  light  of  attending 
circumstances  an  ordinarily  prudent  man  ought  reasonably  to  have  fore- 
seen might  probably  occur  as  the  result  of  his  negligence."  29  Cyc. 
493.  See,  also.  Nelson  v.  McLellan,  31  Wash.  208,  71  Pac.  747,  96  Am. 
St.  902,  60  L.  R.  A.  793;  Akin  v.  Bradley  Engineering  &  Mach.  Co., 
48  Wash.  97,  92  Pac.  903,  14  L.  R.  A.  (N.  S.)  586;  Wellington  v.  Pelle- 
tier,  173  Fed.  908;  Mattson  v.  Minnesota  etc.  R.  Co.,  supra;  Powell  v. 
Deveney,  3  Cush.  300,  50  Am.  Dec.  738;  Scott  v.  Shepherd,  2  W.  Bl. 
892;  Englehart  v.  Farrant  &  Co.,  1  Q.  B.  (1897)  240;  Myers  v.  Sault  St. 
Marie  Pulp  &  Paper  Co.,  3  Ont.  L.  R.  600;  Labombarde  v.  Chatham 
Gas  Co.,  10  Ont.  L.  R.  446;  Clark  v.  Chambers,  3  Q.  B.  (1878)  327, 
7  Cent.  Law  Journal  11 ;  Lynch  v.  Nurden,  1  Q.  B.  29;  Illidge  v.  Goodwin, 
5  C.  &  P.  190;  Lake  v.  Milliken,  62  Me.  240,  16  Am.  Rep.  456;  Harri- 
man  v.  Pittsburgh  etc.  R.  Co.,  45  Ohio  St.  11,  12  N.  E.  451,  4  Am.  St. 
507;  Lane  v.  Atlantic  Works,  111  Mass.  136;  Powers  v.  Harlow,  53 
Mich.  507,  19  N.  W.  257,  51  Am.  Rep.  154;  Mize  v.  Rocky  Mountain 
Bell  Tel.  Co.,  38  Mont.  521,  100  Pac.  971,  129  Am.  St.  659;  Fishburn  v. 
Burlington  &  N.  W.  R.  Co.,  127  Iowa  483,  103  N.  \Y.  481. 

No  two  cases  can  be  found  which  are  identical,  and  there  is  an 
irreconcilable  conflict  of  authority  on  this  question,  but  we  think  the 
above  mentioned  cases,  and  many  others  that  might  be  cited,  announce 
correct  principles  of  law  applicable  to  the  facts  now  before  us.  In 
Myers  v.  Sault  St.  Marie  Pulp  &  Paper  Co.,  supra,  a  workman  em- 
ployed by  the  defendants  ascended  a  movable  stepladder  to  work 
near  the  unguarded  rim  of  a  cogwheel.  When  he  was  about  to  descend, 
a  truckman  moved  the  ladder,  causing  him  to  fall  on  the  unguarded 
wheel.  The  contention  was  made  that  the  defendants'  negligence 
in  failing  to  guard  the  cogwheel  as  required  by  statute,  and  in  failing  to 
provide  an  immovable  ladder,  was  not  the  proximate  cause  of  the 
accident,  but  that  the  wrongful  act  of  the  truckman  in  mo\-ing  the 
ladder  was  such  proximate  cause.  The  issue  was  submitted  to  the 
jury,  and  the  appellate  court,  speaking  through  Armour,  C.  J.  0., 
said: 

"  The  jury  having  found  that  the  injury  to  the  workman  was  caused 
by  the  negligence  of  the  defendants  in  no  way  guarding  the  wheel, 
and  in  not  properly  fastening  the  ladder  to  the  floor,  and  this  finding 
being,  as  I  think,  supported  by  the  evidence,  the  next  question  is,  did 
the  intervention  of  the  workman  in  wrongfully  taking  away  the  ladder 
relieve  the  defendants  from  the  consequences  of  their  negligence,  and  I 
think  not,  for  the  defendants'  negligence  still  remained  an  operating 
cause  of  the  workman's  injury.  According  to  what  is  said  by  Lord 
Esher  and  Rigby,  L.  J.,  in  Engelhart  v.  Farrant  &  Co.,  [1897]  1  Q.  B. 
240,  the  question  whether  the  negligence  of  the  defendants  was  an 
effective  cause  of  the  workman's  injury  was  a  question  for  the  jury,  and 
if  so,  they  have  in  effect  determined  it,  by  finding  as  they  did  in  their 


SECT,  v.]  OLSON    V.    GILL   HOME    INVESTMENT    CO.  373 

answers  to  the  third  and  seventh  questions  submitted  to  them.  And 
I  think  that  the  authorities  show  that  the  intervention  of  the  work- 
man in  wrongfully  taking  away  the  ladder  did  not  relieve  the  de- 
fendants from  the  consequences  of  their  negligence." 

In  Labombarde  v.  Chatham  Gas  Co.,  supra,  where  plaintiff  received 
an  electric  shock,  the  court  said: 

"But  if  the  actual  throwing  of  the  loose  guy  wire  over  the  other 
wires  were  the  act  of  some  passer-by,  who  thought  to  put  it  out  of  the 
way,  or  even  of  some  mischievous  urcliin,  it  seems  to  me  such  a  likely 
and  probable  thing  to  happen  that  it  is  not  too  remotely  connected 
with  the  act  of  cutting  the  guy  wire  from  its  fastenings  and  leaving 
it  loose  on  the  ground  to  render  those  guilty  of  the  latter  negligence 
liable  for  the  consequences  which  ensued  though  an  independent  agency 
had  intervened  as  their  immediate  cause.  The  original  negligence  of  the 
workmen  of  the  defendant  company  was  an  effective  cause  of  the  in- 
jury to  the  plaintiffs.    McDowall  v.  Great  Western  R.  W.  Co.,  [1902] 

1  K.  B.  618,  [1903]  2  K.  B.  331,  337-8." 

The  recent  case  of  Wellington  v.  Pelletier,  supra,  is  especially  per- 
tinent. There  the  defendant's  employees  had  negligently  left  a  num- 
ber of  cars  standing  on  a  spur  track  at  the  head  of  a  grade,  secured  only 
by  setting  the  brakes.  They  should  have  been  further  secured  by  fas- 
tening or  blocking  the  wheels.  Some  children  playing  about  the  cars 
released  the  brakes,  causing  them  to  run  down  and  kill  defendant's 
employee,  who  was  working  in  a  trench  between  the  rails  of  the  spur. 
It  was  held  that  the  intervening  act  of  the  children  did  not  prevent 
the  defendant's  negligence  from  being  the  proximate  cause  of  the 
accident.    The  court  said : 

"  It  is  claimed  that  the  interposition  of  the  boys  in  this  case  was  the 
interposition  of  a  new  efficient  cause,  which,  if  interposed,  the  law 
says  eliminates  the  original  cause.  On  the  other  hand,  it  has  been 
thoroughly  understood,  since  the  leading  case  of  Scott  v.  Shepherd, 

2  W.  Bl.  892,  well  known  as  the  *  Squib  Case,'  that  the  interposition 
even  of  human  beings,  acting  under  circumstances  which  deprive 
them  of  periods  for  reflection,  or  known  to  be  of  classes  which  are  ordi- 
narily governed  by  unreasoning  impulses,  does  not  come  wnthin  the 
class  of  responsible  interventions  referred  to.  This  is  illustrated  in 
one  direction  by  the  Squib  Case,  and  in  the  other  direction  by  the  well- 
known  cases  where  young  children,  either  through  carelessness  or  in- 
attention, have  been  intrusted  with  dangerous  weapons.  The  general 
principle  is  sufficiently  discussed  in  Pollock's  Law  of  Torts  (8th  Eng. 
ed.)  45  et  seq.  The  rule  on  which  the  plaintiff  relies  in  this  respect  was 
authoritatively  stated  and  applied  by  the  Court  of  Appeal  in  1896 
in  Engelhart  v.  Farrant,  [1897]  1  Q.  B.  240." 

In  this  case  it  was  for  the  jury  to  determine  whether  respondent  and 
the  other  boys,  considering  their  age,  their  experience,  and  their  knowl- 
edge of  right  and  wrong,  were  in  their  acts  governed  by  unreasoning  and 


374  JACOBS   V.    NEW    YOUK,    N.    H.   &   H.   R.    R.    CO.      [CIIAP.  III. 

natural  impulses.  That  the  question  of  proximate  cause  was  properly 
submitted  to  the  jury,  see:  Milwaukee  &  St.  Paul  R.  Co.  v.  Kellogg, 
94  U.  S.  469;  Union  Pac.  R.  Co.  v.  Callaghan,  56  Fed.  988;  Denver  etc. 
R.  Co.  V.  Robbins,  2  Colo.  App.  313,  30  Pac.  261. 

Appellants  make  other  assignments  of  error  based  upon  instructions 
given  and  refused,  but  the  foregoing  discussion  disposes  of  them 
adversely  to  their  contention.  The  instructions  given  fully,  fairly,  and 
correctly  stated  the  law,  and  properly  submitted  all  issues  of  fact  to 
the  jury  for  their  consideration. 

It  is  contended  that  the  criminal  act  of  the  boys  in  stealing  the 
dynamite  was  such  an  independent,  intervening  act  as  to  insulate  the 
appellants'  negligence  and  relieve  them  from  liability.  The  question 
as  to  whether  the  boys  fully  understood  the  criminal  import  of  their 
act  was  properly  submitted  to  the  jury  and  determined  adversely  to 
the  appellants'  contention,  as  was  also  the  question  of  the  contributory 
negligence  of  the  respondent,  he  being  of  tender  age.  There  was  e\'i- 
dence  tending  to  show  that  the  boys,  including  respondent,  did,  to  a 
limited  extent,  realize  that  dynamite  was  a  violent  explosive.  They 
were  trying  to  expode  it;  but  the  evidence  further  shows  that  they  did 
not  fully  understand  or  appreciate  all  of  its  dangerous  qualities.  They 
supposed  it  could  only  be  exploded  by  some  method  of  ignition,  and 
when  they  lit  the  fuse,  they  dodged  behind  large  stumps  for  protection. 
It  is  evident,  however,  that  they  did  not  anticipate  that  any  explosion 
could  be  produced  in  the  manner  in  which  it  was  produced.  In  the 
light  of  respondent's  tender  years,  his  limited  knowledge,  his  lack  of 
experience,  and  all  of  the  facts  and  circumstances  disclosed  by  the 
evidence,  we  cannot  hold  that  he  was,  as  a  matter  of  law,  guilty  of  such 
contributory  negligence  as  to  relieve  the  appellants  from  liability,  but 
must  hold  that  the  question  of  his  contributory  negligence  was  an 
issue  for  the  jury.^ 


JACOBS  V.  NEW  YORK,  NEW  HAVEN  &  HARTFORD 
RAILROAD  CO. 

Supreme  Judicial  Court  of  Massachusetts,  1912. 

[Reported  212  Mass.  96.] 

Tort  by  the  administratrix  of  the  estate  of  Stephen  Otis  Jacobs, 
junior,  for  the  suffering  and  death  of  the  plaintiff's  intestate,  a  boy 
fifteen  years  of  age,  caused  by  the  explosion  of  a  railroad  torpedo 
belonging  to  the  defendant.  The  plaintiff's  substituted  declara- 
tion contained  two  counts,  the  first  at  common  law  for  the  conscious 

iSee  also  Victor  v.  Smilanich,  54  Colo.  479,  131  Pac.  392;  Vills  v.  Cloquet,  119 
Minn.  277,  138  N.  W.  33;  Harriman  v.  Pittsburgh  Ry.,  45  Oh.  St.  11,  12  N.  E.  451.— 
Ed. 


SECT,    v.]      JACOBS    V.    NEW   YORK,    N.    H.    &   H.    R.    R.    CO.  375 

suffering  of  the  plaintiff's  intestate  alleged  to  have  been  caused  by  the 
negligence  of  the  defendant,  its  agents  and  servants  in  permitting 
the  torpedo  to  come  into  the  hands  of  the  intestate,  knowing  that  it 
was  a  dangerous  explosive  and  unmarked  in  any  way  to  indicate 
its  character,  and  the  second  count  under  St.  1906,  c.  463,  Part  I, 
§  63,  for  the  death  of  the  plaintiff's  intestate,  alleged  to  have  been 
caused  by  the  negligence  of  the  defendant  or  by  the  unfitness  or  gross 
negligence  of  its  servants  or  agents  while  engaged  in  its  business. 
Writ  dated  March  12,  1908. 

In  the  Superior  Court  the  case  was  tried  before  Dubuque,  J.  Facts 
which  could  have  been  found  upon  the  evidence  are  stated  in  the  opin- 
ion. The  explosion  occurred  on  March  31,  1907,  and  the  plaintiff's 
intestate  died  on  April  9,  1907.  There  was  evidence  that  on  March 
22, 1907,  the  intestate  with  other  boys  was  waiting  about  the  defendant's 
station  at  Rockland  for  the  purpose  of  seeing  off  some  high  school 
scholars  who  were  going  to  Washington,  that  while  they  were  there  a 
train  stopped  at  the  station  and  the  baggage  master  upon  it  put  off  a 
piece  of  baggage  and  that  when  he  did  so  the  torpedo,  which  was  de 
scribed  as  a  tin  disk  wholly  unmarked,  fell  to  the  platform,  that  one 
Turner,  one  of  the  intestate's  companions,  who  was  between  nine  and 
ten  years  of  age,  picked  up  the  torpedo  and  put  it  in  his  pocket,  that 
after  the  train  had  gone  Turner  showed  the  disk  to  the  other  boys,  that 
by  shaking  it  they  could  hear  something  rattle  and  they  tried  to  open 
it  with  their  knives  to  find  out  what  was  inside,  that  on  the  following 
Sunday,  March  24,  the  boys  were  together  and  Turner  found  the  disk 
in  his  pocket  and  produced  it  and  the  boys  again  tried  to  open  it  with- 
out success,  that  on  the  Sunday  after,  which  was  March  31,  the  same 
boys  were  together  after  Sunday  school,  that  Turner  again  found  the 
disk  in  his  pocket  and  the  boys  again  tried  to  open  it,  and  that  finally 
Turner  gave  the  disk  to  the  plaintiff's  intestate  who  put  it  on  a  stone 
and  struck  it  with  his  right  foot,  when  the  explosion  occurred.  There 
was  evidence  that  none  of  the  boys  knew  that  the  disk  was  of  a  danger- 
ous   character. 

At  the  close  of  the  evidence,  the  defendant  asked  the  judge  to  rule 
that  upon  the  evidence  the  plaintiff  was  not  entitled  to  recover  either 
upon  the  first  or  the  second  count  of  her  substituted  declaration. 
The  judge  ordered  a  verdict  for  the  defendant  on  each  of  the  counts, 
and  reported  the  case  for  determination  by  this  court,  with  a  stipula- 
tion of  the  parties  which  has  become  immaterial. 

Braley,  J.  The  injuries  to  the  plaintiff's  intestate  which  resulted 
in  his  death  after  a  period  of  conscious  suffering,  were  caused  by  the 
explosion  of  a  railroad  signal  torpedo,  the  property  of  the  defendant. 
It  may  be  assumed,  that  the  jury  would  have  been  warranted  in  finding 
upon  the  evidence  the  following  facts:  In  the  management  of  its  busi- 
ness as  a  carrier  of  passengers,  trains  were  provnded  with  torpedoes, 
which  whenever  necessary  were  to  be  used  by  the  flagman  on  the 


376  JACOBS   V.    NEW   YORK,    N.   H.    &   H.   K.    R.    CO.        [CHAP.  III. 

train  ahead,  to  warn  trains  approaching  from  the  rear,  that  a  preceding 
train  not  very  far  distant  was  passing  over  the  same  track.  The  warn- 
ing consisted  in  the  noise  of  the  explosion,  as  the  on-coming  train 
struck  the  torpedo,  which  the  flagman  affixed  to  the  rail  by  straps 
forming  a  part  of  the  apparatus.  To  be  efFectiA-e,  not  only  the  torpedo 
must  be  exploded  by  contact  with  the  train,  but  the  detonation  must  be 
sufficiently  great  to  attract  the  attention  of  trainmen.  The  jury 
properly  could  infer  from  these  circumstances,  and  from  the  testimony 
of  the  plaintiff's  expert  as  to  the  character  of  the  composition  with  which 
it  was  charged,  as  well  as  from  the  rule  promulgated  by  the  company, 
which  was  introduced  in  e\adence,  that  the  defendant  knew  or  by  the 
use  of  due  diligence  should  have  known,  that  the  torpedo  contained 
a  highly  explosive  compound.  If  exploded  without  proper  precautions, 
or  under  extraneous  conditions,  pieces  of  the  shell  or  case  might  fly 
with  such  force  in  various  directions  as  to  endanger  the  safety  of  persons 
in  the  vicinity.  The  use  of  a  dangerous  agency  of  this  nature,  which 
must  be  classed  with  gunpowder,  and  explosives  like  nitroglycerine, 
and  dynamite  in  its  various  forms,  while  lawful,  imposed  upon  the  de- 
fendant the  duty  of  taking  every  proper  precaution  to  prevent  personal 
injury  to  those  lawfully  upon  the  company's  premises  from  explosions 
which  might  be  precipitated  through  the  carelessness  of  its  servants. 
Derry  t.  FUtner,  118  Mass.  131;  Oulighan  v.  Butler,  189  Mass.  287, 
292;  DuUigan  v.  Barber  Asphalt  Paving  Co.  201  Mass.  227,  231. 

The  inquiry,  accordingly,  is  whether  the  injury  in  question  rea- 
sonably should  have  been  anticipated  by  the  defendant.  Obertoni  v. 
Boston  &  Maine  Railroad,  186  Mass.  481.  The  train  which  came  into 
the  station  where  the  intestate,  a  boy  of  fifteen  years  of  age,  and  his 
young  companions  were  waiting  for  the  departure  of  friends,  carried 
in  the  baggage  car  a  torpedo  to  be  used  as  a  signal,  which  the  jury  could 
find  was  carelessly  ejected  by  the  defendant's  baggage  master  and  fell 
within  the  railroad  location.  The  evidence  ha\ang  warranted  a  find- 
ing that  the  intestate  was  not  a  trespasser,  it  would  follow  that  if 
from  the  impact  of  the  fall  or  from  the  innocent  intermeddhng  of  by- 
standers whose  presence  might  have  been  anticipated  an  explosion 
had  followed,  injuring  him,  the  company  as  matter  of  law  would  not 
have  been  exonerated.  Lucas  v.  New  Bedford  &  Taunton  Railroad,  6 
Gray,  64;  Bradford  v.  Boston  k  Maine  Railroad,  160  Mass.  392; 
Mcivone  v.  Michigan  Central  Railroad,  51  Mich.  601;  Illinois  Central 
Railroad  v.  Hammer,  72  111.  347;  Lane  v.  Atlantic  Works,  111  Mass. 
136. 

But  the  defendant  was  not  bound  to  foresee  that  one  of  the  in- 
testate's companions,  actuated  doubtless  by  a  boy's  impulse  and 
curiosity  in  which  apparently  the  intestate  shared,  to  possess  and 
explode  the  torpedo,  would  remove  it  almost  immediately  from  the 
premises,  and  that  after  the  lapse  of  ten  days  the  experiment  would 
be  tried  in  the  vicinity  of  their  homes,  and  the  intestate,  who  partici- 


SECT,  v.]  HOLLIDGE    V.   DUNCAN.  377 

pated,  would  be  fatally  injured  by  the  explosion.  Denny  v.  New  York 
Central  Railroad,  13  Gray,  481;  Quigley  x.  Cough,  173  Mass.  429, 
430;  Smith  v.  Peach,  200  Mass.  504;  McDowall  v.  Great  Western 
Railroad,  [1903]  2  K.  B.  331.  The  accident  is  deplorable,  but  the 
wrongful  asportation  which  brought  the  intestate  in  contact  with  the 
exploding  torpedo  occasioned  the  mischief,  and  distinguishes  the  case 
at  bar  from  Lane  v.  Atlantic  Works,  111  Mass.  136,  and  the  doctrine 
stated  in  Lebourdais  v.  Vitrified  Wheel  Co.  194  Mass.  341,  344.  The 
injury  not  having  been  caused  by  its  negligence,  the  presiding  judge 
correctly  ruled  that  there  could  be  no  recovery  under  either  count, 
and  in  accordance  with  the  terms  of  the  report  judgment  must  be 
entered  for  the  defendant  on  the  verdicts. 

So  ordered. 


HOLLIDGE  V.   DUNCAN. 
Supreme  Judicial  Court  of  Massachusetts,  1908. 

[Reported  199  Mass.  121.] 

Morton,  J.  While  the  plaintiff  was  looking  into  a  shop  win- 
dow on  Washington  Street,  he  was  struck  by  the  pole  or  tongue  of 
a  dump  cart  owned  by  the  defendant,  and  loaded  with  gravel  and  stand- 
ing in  the  street  parallel  with  the  sidewalk,  or  by  the  plate  glass  falling 
from  the  window  broken  by  the  pole,  and  received  the  injuries  com- 
plained of.  The  horses  had  been  unhitched  from  the  cart,  and  the  pole 
"was  sticking  up  in  the  air"  as  a  witness  described  it.  In  answer  to 
written  interrogatories  from  the  plaintiff,  the  defendant  stated  that  the 
cart  was  out  of  order  and  that  the  driver  was  trying  to  fix  it  and  asked 
a  bystander  to  assist  him ;  that  "  the  bystander  took  hold  of  a  blanket 
w^hich  was  caught  between  the  seat  and  the  sweep  of  the  cart  and 
jerked  it  to  get  it  free,  and  as  he  did  so  the  perch  broke  and  the  pole 
swung  around  over  the  sidewalk  and  hit  a  window,  breaking  the  glass, 
some  of  which  fell  on  a  person  standing  near."  The  accident  was 
described  in  substance  as  follows  by  a  person  who  was  passing  along 
the  street  and  saw  it :  "  he  noticed  that  the  robe  was  caught  under  the 
sweep  and  that  somebody  came  along  and  pulled  it;  that  the  cart  lurched 
and  the  pole  went  a  little  higher  and  then  suddenly  swung  around  over 
the  sidewalk  and  fell  against  the  window  smashing  it.  He  saw  the 
plaintiff  struck  and  fall.  As  the  pole  swung  around  the  body  of  the 
cart  fell  down  and  appeared  to  be  wholly  disconnected."  On  cross- 
examination  this  witness  said  that  he  was  not  sure  whether  the  pole 
struck  the  plaintiff,  or  the  chains  on  it,  or  the  falling  glass,  but  he 
thought  that  it  was  the  falling  glass.  There  was  nothing  to  show  how 
long  the  cart  had  been  out  of  order  or  what  caused  it  to  be  out  of  order. 
The  defendant  did  not  call  the  driver  as  a  witness  and  did  not  testify 


378  HOLLIDGE   V.   DUNCAN.  [CHAP.  III. 

himself  and  introduced  no  evidence.  There  was  a  finding  for  the  plain- 
tiff, and  the  case  is  here  on  exceptions  by  the  defendant  to  the  refusal 
of  the  judge  to  giv^e  certain  rulings  which  he  requested. 

The  defendant  contends  in  substance  that  the  accident  was  caused 
by  the  jerking  or  pulling  of  the  blanket  by  the  bystander,  and  that 
he  is  not  liable  therefor  because  the  driver  had  no  authority  to  pro- 
cure assistance  from  the  bystander.  But  we  think  that  the  act  of  the 
bystander  must  be  regarded  as  the  act  of  the  driver.  The  cart  was  out  of 
order  and  the  driver  was  trying  to  fix  it  as  he  was  bound  to  do.  For  that 
purpose  he  asked  the  bystander  to  assist  him.  And  in  doing  so  he 
used  the  assistance  of  the  bystander  as  he  would  have  used  a  tool  or 
appliance  which  he  had  procured,  and  which  he  must  be  regarded  as 
having  implied  authority  to  procure  under  the  circumstances.  The 
fact  that  the  tool  or  appliance  was  an  intelligent  human  being  does  not 
affect  the  matter  any  more  than  the  fact  that  another  person  held  the 
reins  did  in  Booth  v.  Mister,  7  C.  &  P.  66.  The  case  is  not  one  where 
the  servant  attempted  to  delegate  his  duty  to  another  as  in  Gwilliam 
r.  Twist,  [1895]  2  Q.  B.  84;  but  a  case  where  the  driver  needed  for  a 
moment,  in  the  performance  of  his  duty  in  a  sudden  emergency,  another 
hand,  and  found  it  in  the  assistance  given  at  his  request  by  a  stranger, 
and  what  was  done  by  the  stranger  was  as  if  done  by  himself.  See 
Althorf  V.  Wolfe,  22  N.  Y.  355;  Campbell  v.  Trimble,  75  Texas,  270; 
Bucki  V.  Cone,  25  Fla.  1;  Pennsylvania  Co.  v.  Gallagher,  40  Ohio  St. 
637;  James  v.  Muehlebach,  34  Mo.  App.  512. 

Moreover  the  cart  was  out  of  order  and  the  defendant  offered  no  ex- 
planations as  to  how  long  it  had  been  out  of  order  or  what  caused  it 
to  be  so.  In  the  absence  of  such  explanation  the  judge  was  warranted 
in  finding  that  the  cart  would  not  have  been  out  of  order  but  for  the 
defendant's  negligence.  And  he  could  also  find  that  its  condition  was  a 
contributing  cause  of  the  accident.  Lane  v.  Atlantic  Works,  107  Mass. 
104.  In  other  words,  he  could  find  that,  if  it  had  not  been  for  the  con- 
dition of  the  cart,  the  action  of  the  bystander  in  pulling  out  the  blanket 
would  not  have  caused  the  body  of  the  cart  to  fall,  as  one  of  the  wit- 
nesses testified  that  it  did,  and  the  pole  to  swing  round  over  the  side- 
walk, thereby  striking  the  plaintiff,  or  breaking  the  window  so  that 
he  was  injured  by  the  falling  glass.  It  is  not  necessary  to  render  the 
defendant  liable  that  he  should  have  been  able  to  foresee  the  precise 
manner  in  which  the  accident  happened.  It  is  enough  if  injury  to 
another  was  reasonably  to  be  apprehended  as  a  result  of  his  neghgent 
conduct.  Lane  v.  Atlantic  Works,  ubi  supra.  Feely  v.  Pearson  Cord- 
age Co.  161  Mass.  426.  We  see  no  error  in  the  manner  in  which  the 
judge  dealt  with  the  case. 

Exceptions  overruled} 

'  See  also  Wells  Fargo  &  Co.  v.  Zimmer,  186  Fed.  130;  Harrison  v.  Kansas  City 
E.  L.  Co.,  195  Mo.  606,  93  S.  W.  951.—  Ed. 


SECT,  v.]  HARTON    V.   FOREST   CITY   TELEPHONE   CO.  379 


HARTON  V.   FOREST  CITY  TELEPHONE  CO. 
SuPKEME  Court  of  North  Carolina,  1907. 

[Reported  146  A'.  C.  429.] 

Connor,  J.  .  .  .^  The  case  comes  to  this.  The  pole  having  fallen  by 
reason  of  defendant's  negligence,  was  lying  on  the  ground,  across  the 
road,  on  Sunday.  Carpenter  and  several  others  came  along  and  put  the 
pole  back  in  the  hole  from  which  it  had  fallen  by  reason  of  the  support 
being  removed  by  the  overseer  of  the  road,  and  the  rain.  He  and  those 
with  him,  for  the  purpose  of  making  it  secure,  went  to  a  wood  pile 
near  by  and  got  a  pine  stick  or  pole,  of  the  size  and  length  described 
by  them,  and  propped  the  pole  in  the  manner  described.  They  propped 
it  up  to  get  it  out  of  the  way.  They  could  have  held  it  up  and  driven 
under  it,  as  they  did  another  pole  not  far  away.  Carpenter  had  no 
connection  with  and  did  not  act  in  behalf  of  defendant.  In  less  than 
an  hour  after  Carpenter  put  the  pole  up,  the  plaintiff  and  his  daughter, 
riding  in  a  buggy  and  driving  a  mule,  came  along  the  road,  and,  just 
as  they  passed,  without  any  suggestion  of  the  immediate  cause,  other 
than  inherent  weakness  in  the  support  which  it  had,  the  pole  fell,  the 
mule  ran  and,  in  some  way,  immaterial  in  this  connection,  but  difficult 
to  understand,  the  daughter  received  a  severe  concussion  of  the  brain, 
without  being  hit  by  the  pole,  became  unconscious,  and,  in  six  weeks, 
died. 

The  question  is  thus  presented,  whether  the  act  of  Carpenter  or  the 
original  negligence  of  defendant,  in  legal  contemplation,  was  the  prox- 
imate cause  of  the  injury  sustained  by  plaintiff's  intestate.  We  think 
it  manifest  that  Carpenter  negligently  —  that  is,  insecurely  —  placed 
the  pole  in  the  hole  from  which  it  had  recently  fallen.  The  dangerous 
condition  in  which  it  was  left  by  the  overseer  was  the  result  of  plowing 
near  to  it,  removing  or  loosening  the  earth  by  which  it  was  supported. 
This,  followed  by  the  heavy  rain,  caused  the  pole  to  fall.  This  was 
manifest  to  Carpenter.  All  of  the  evidence  is  to  this  effect.  Carpenter 
and  those  aiding  him  recognized  it  by  going  to  a  wood  pile  and  getting 
the  pine  stick  with  which  to  prop  it.  That  it  fell  within  a  short  time 
—  less  than  an  hour  —  shows  that  it  was  left  by  Carpenter  in  an  in- 
secure and  dangerous  condition.  His  motive  —  purpose  —  was  doubt- 
less to  restore  the  pole  and  serve  the  defendant  and  its  patrons,  but  the 
act  was  unauthorized.  He  could  not  impose  upon  defendant  any  new 
or  different  duty  or  liability  from  that  which  it  assumed  by  its  original 
negligence.  If  the  pole  had  struck  plaintiff's  mtestate  when  it  fell 
the  first  time,  or  if,  after  being  down  across  the  road,  she  had,  without 
contributory  negligence,  driven  against  it  and  been  injured,  the  defend- 

*  Part  of  the  opinion  is  omitted.  —  Ed. 


380  HAIITON   V.    FOREST   CITY   TELEPHONE    CO.  [CHAP.  III. 

ant  would  have  been  liable.  It  was  liable  for  all  such  damages  as  re- 
sulted or  flowed  in  ordinary  natural  sequence  from  the  negligent  omis- 
sion to  repair  the  dangerous  condition  of  the  pole  after  a  reasonable 
opportunity  to  do  so;  the  reason  being,  as  said  by  Pollock,  probably 
the  most  accurate  WTiter  on  the  subject,  "  that  a  person  is  expected  to 
anticipate  and  guard  against  all  reasonable  consequences  of  his  negli- 
gence, but  that  he  is  not  expected  to  anticipate  and  guard  against  that 
which  no  reasonable  man  would  expect  to  occur."  Torts,  40,  citing 
Greenland  v.  Chaplin,  5  Ex.,  248;  Ramsbottom  v.  Railroad,  138  N.  C. 
38.  Discussing  this  question,  Mr.  Justice  Walker,  in  Drum  v.  Miller, 
135  N.  C.  204,  quotes  with  approval  the  language  of  Judge  Cooley: 
"When  the  act  or  omission  complained  of  is  not  in  itself  a  distinct 
wrong,  and  can  only  become  a  wrong  to  any  particular  indi\i(lual 
through  consequences  resulting  therefrom,  this  consequence  must  not 
only  be  shown,  but  it  must  be  so  connected,  by  averment  and  evi- 
dence, with  the  act,  or  omission,  as  to  appear  to  have  resulted  there- 
from, according  to  the  ordinary  course  of  events,  as  a  proximate  result 
of  a  sufficient  cause."  Cooley  on  Torts,  p.  74.  This  principle  would 
have  been  illustrated  and  applied  if  plaintiff's  intestate  had  been  in- 
jured by  the  first  falling  of  the  pole  or  by  driving  against  it  while  down 
across  the  road.  Carpenter's  act  introduces  a  new  element  in  the  case 
and  renders  it  necessary  for  us  to  seek  another  principle  by  which  to 
determine  defendant's  liability.  It  is  manifest  that,  but  for  Carpenter's 
act,  the  pole  could  never  have  fallen  upon  plaintiff's  intestate.  So  far 
as  the  dangerous  condition  of  the  pole,  which  imposed  upon  defendant 
the  duty  of  securing  it/  was  concerned,  when  it  fell  its  power  to  injure 
by  falling  was  exliausted.  No  one  ha\ang  been  injured  in  the  falling, 
the  case  was  damnum  absque  injuria.  The  duty  thus  imposed  upon 
the  defendant  was  to  remove  the  obstruction  from  the  highway,  and  a 
failure  to  do  this  promptly,  under  the  circumstances,  rendered  it  liable 
for  injuries  sustained  by  any  person  traveling  the  highway.  The  pole 
was  down  across  the  highway  by  reason  of  defendant's  negligence,  be- 
cause, for  the  purpose  of  this  discussion,  we  eliminate  the  heavy  rain 
as  a  causal  element  in  producing  the  condition.  Assuming  that  defend- 
ant knew  the  pole  was  in  a  dangerous  condition  and  liable  to  fall,  either 
with  or  without  the  heavy  rain,  it  was  fixed  with  notice  that  it  had 
fallen  —  that  is,  that  the  probable  result  of  its  negligence  had  oc- 
curred. In  this  condition  of  the  case  we  find  a  satisfactory  statement 
of  the  law  in  Wharton  on  Neg.  138.  He  says:  "Suppose  that,  if  it 
had  not  been  for  the  intervention  of  a  responsible  third  party,  the 
defendant's  negligence  would  have  produced  no  damage  to  the  plain- 
tiff, is  the  defendant  liable  to  plaintiff?  This  question  must  be  answered 
in  the  negative,  for  the  general  reason  that  causal  connection  between 
the  negligence  and  damage  is  broken  by  the  interposition  of  defendant's 
responsible  human  action.  I  am  negligent  on  a  particular  subject- 
matter.    Another  person,  moving  independently,  comes  in  and,  either 


SECT,  v.]  HARTON    V.   FOREST   CITY   TELEPHONE   CO.  SSI 

negligently  or  maliciously,  so  acts  as  to  make  my  negligence  injurious 
to  a  third  person.  If  so,  the  person  so  intervening  acts  as  a  noncon- 
ductor and  insulates  my  negligence,  so  that  I  cannot  be  sued  for  the 
mischief  which  the  person  so  intervening  directly  produces.  He  is 
the  one  who  is  liable." 

The  rule,  as  announced  by  Justice  Strong,  in  Railroad  v.  Kellogg, 
94  U.  S.  469  (p.  475),  is  usually  regarded  as  sound  in  principle  and  work- 
able in  practice.  He  says :  "  The  question  always  is.  Was  there  an  un- 
broken connection  between  the  wrongful  act  and  the  injury  —  a 
continuous  operation?  Did  the  facts  constitute  a  continuous  succes- 
sion of  events,  so  linked  together  as  to  make  a  natural  whole,  or  was 
there  some  new  and  independent  cause  intervening  between  the  wrong 
and  the  injury?  It  is  admitted  that  the  rule  is  difficult  of  application. 
But  it  is  generally  held  that,  in  order  to  warrant  a  finding  that  negli- 
gence, or  an  act  amounting  to  a  wanton  wrong,  is  the  proximate  cause 
of  an  injury,  it  must  appear  that  the  injury  was  the  natural  and  prob- 
able consequence  of  the  negligence,  or  wrongful  act,  and  that  it 
ought  to  have  been  foreseen  in  the  fight  of  attending  circumstances." 

In  many  of  the  cases  found  in  the  reports,  in  which  it  is  claimed  that 
intervening  agencies  have  broken  the  causal  connection  between  the 
wrong  and  the  injury,  it  will  be  noted  that  the  intervening  agencies 
are  either  natural  or  conventional  conditions,  as  when  a  house  is  neg- 
ligently burned,  whereby  the  fire  is  communicated  to  other  houses 
more  or  less  remote  from  the  original,  and  winds  or  other  natural 
causes  have  changed  or  controlled  the  course  of  the  flames.  Here  the 
intervening  agency  is  free,  intelligent  and  independent,  in  the  sense  of  a 
self-controlled  person  who  interposes  and  changes  the  conditions  which 
he  finds  existing  when  he  enters  upon  the  scene.  The  liability,  if  any 
exist,  for  his  conduct  is  vicarious.  Adopting  either  view  of  causation 
as  the  basis  of  liability  —  that  of  "  natural  and  probable  consequences," 
or  "what  ought  reasonably  to  have  been  anticipated  and  guarded 
against" — we  think  the  same  conclusion  follows  in  this  case.  Dr. 
Wharton  says :  "  Reserving  for  another  point  the  consideration  of  con- 
sequences resulting  from  the  indefinite  extension  of  \acarious  liability, 
we  may  now  ask  whether,  on  elementary  principles,  the  action  of  an 
independent,  free  agent,  taking  hold,  unasked,  of  an  impulse  started 
by  us  and  giving  it  a  new  course,  productive  of  injury  to  others,  does 
not  make  him  the  juridical  starting  point  of  the  force  so  applied  by 
him,  so  far  as  concerns  the  person  injured.  For  the  spontaneous  action 
of  an  independent  will  is  neither  the  subject  of  regular,  natural  se- 
quence, nor  of  accurate  precalculation  by  us.  In  other  words,  so  far 
as  concerns  my  fellow-beings,  their  acts  cannot  be  said  to  have  been 
caused  by  me,  unless  they  are  imbeciles  or  act  under  compulsion  or 
under  circumstances  produced  by  me  which  gave  them  no  opportunity 
for  volition."  This  language  excludes  nonliability  for  the  acts  of  one 
under  compulsion  by  reason  of  conditions  produced  by  the  original 


382  HARTOX    V.   FOREST    CITY    TELEPHONE    CO.  [CHAP.  III. 

wrongdoer,  as  in  the  Squib  case,  the  throwing  of  the  squib  by  the 
intervening  persons  was  for  their  protection  from  a  danger  to  which  the 
defendant  gave  the  first  impulse.  They  were  not  "free  agents." 
Scott  V.  Shepherd,  2  Black,  892;  1  Smith  L.  C.  549.  Of  course,  if 
Carpenter  had  been  defendant's  servant,  acting  within  the  i^cope  of 
his  employment,  the  liability  would  have  attached,  upon  the  doctrine 
of  qui  facit  per  alium,  etc. 

WTien  the  cause  was  before  us  on  the  other  appeal,  the  majority 
of  the  Court  conceded  that  Carpenter's  act  "intervened  and  was  the 
efficient  cause  of  tht  injury"  (141  N.  C.  462),  but  the  doubt  was  ex- 
pressed whether  it  was  a  "new  and  independent  cause."  Citing  the 
language  of  Barrows  on  Negligence,  it  is  said :  "  If,  however,  the  cause 
—  the  intervening  cause  —  be  of  such  a  nature  that  it  would  be  unrea- 
sonable to  expect  a  prudent  man  to  anticipate  its  happening,  he  wdll 
not  be  responsible  for  damage  resulting  solely  from  the  interven- 
tion." Conceding  this  to  be  true,  we  have  in  the  e\'idence  a  striking 
illustration  of  the  di\'iding  line  between  liability  and  nonjiability. 
Defendant  knew  that  the  pole  was  in  a  dangerous  condition  —  that 
the  probability  of  its  falling  was  increased  by  rain.  That  it  might 
rain  was  reasonably  probable.  Therefore,  although  the  pole  may  not 
have  fallen  if  it  had  not  rained  —  and  in  a  certain  sense  the  "  heavy 
rain"  caused  the  pole  to  fall  —  yet,  because  it  was  an  intervening  cause 
which  would  naturally  and  ordinarily  have  occurred,  and  one  which 
ordinary  foresight  ought  to  have  "anticipated  and  guarded  against," 
the  defendant,  by  reason  of  its  original  negligence,  is  not  permitted 
to  escape  liability  upon  the  suggestion  of  broken  causal  :onnection  be- 
tween the  "wrong  and  the  injury."  But  can  it  be  said  that,  in  addition 
to  this,  it  could  have  reasonably  anticipated  that  Carpenter  and  his 
associates  —  a  free,  intelligent  agent  —  coming  along  and  seeing  two 
poles  down  across  the  road,  would  lift  up  one  and  pass  under  it,  and 
would  undertake  to  put  the  other  back  in  the  hole  from  which  it  had  just 
fallen,  and,  further,  would  go  to  a  wood  pile  near  by  and  get  a  pine 
stick  with  which  to  prop  the  pole?  Can  it  be  that  all  this  on  the  part 
of  Carpenter  was  a  natural,  orderly,  usual  sequence  from  the  original 
negligence,  or  that  his  action  was  a  subject  of  ordinary  precalculation 
or  foreknowledge?  "  Can  we  regard  the  independent  action  of  intelli- 
gent strangers  as  something  that  is  in  conformity  \\nth  ordinary  nat- 
ural law,  or  as  something  that  can  be  foreseen  or  preascertained?" 
The  fact  that  Carpenter  disposed  of  the  two  poles  in  the  same  situation 
in  an  entirely  diiferent  manner  —  lifting  one  up  and  passing  under,  and 
putting  the  other  back  in  the  hole  —  is  a  practical  demonstration  of 
the  difficulty  of  following  the  argument  of  pre\dsion  to  the  length 
claimed  by  plaintiff.  Assuming  that  defendant  knew  that  the  pole  had 
fallen,  is  it  reasonably  probable  that  it  would  or  could  foresee  that  some 
one  would  come  and  negligently  put  it  back  in  the  hole,  in  plain  Anew 
of  its  condition?    It  is  an  entirely  reasonable  conclusion  that  the  first 


SECT,  v.]  HARTON   V.   FOREST   CITY    TELEPHONE    CO.  383 

traveler  along  the  road  would  either  push,  pull  or  lift  it  out  of  his  way, 
and  if  in  doing  so  he  left  it  in  a  dangerous  condition,  whereby  plain- 
tiff was  injured,  the  case  would  come  within  the  principle  of  Clark  v. 
Chambers,  3  Q.  B.  D.  327;  47  L.  J.  Q.  B.  427;  19  Eng.  Rul.  Cas.  28, 
relied  upon  by  plaintiff.  In  that  case  defendant  had  obstructed  the 
highway  with  a  hurdle  and  two  wooden  barriers  armed  with  spikes. 
Some  one  came  along  and  removed  one  of  the  chevaux-de-frise  hurdles 
from  the  place  where  it  stood,  and  placed  it  across  the  footpath. 
Plaintiff,  passing  there  in  the  dark,  ran  against  it  and  was  injured. 
The  court  held  that  defendant  was  liable.  Pollock  says  that  the  de- 
cision, or,  at  least,  the  ground  upon  which  it  is  put,  is  not  in  harmony 
with  other  cases.  He  says:  "However,  their  conclusion  may  be  sup- 
ported, and  may  have  been  to  some  extent  determined  by  the  special 
rule  imposing  the  duty  of  what  is  called  '  consummate  caution'  on  per- 
sons dealing  with  dangerous  instruments."     Torts,  49. 

In  Sharp  v.  Powell,  7  L.  R.  (1872),  253,  Boi-ill,  C.  J.,  says:  "No  doubt, 
one  who  commits  a  wrongful  act  is  responsible  for  the  ordinary  conse- 
quences which  are  liable  to  result  therefrom;  but,  generally  speaking, 
he  is  not  liable  for  damage  which  is  not  the  natural  or  ordinary  conse- 
quence of  such  an  act,  unless  it  be  shown  that  he  knows,  or  has  reason- 
able means  of  knowing,  that  consequences  not  usually  resulting  from 
the  act  are,  by  reason  of  some  existing  cause,  likely  to  intervene  so  as 
to  occasion  damage  to  a  third  person."  Pollock  says:  "  Whether  Cham- 
bers V.  Clark  can  stand  -wdth  it  or  not,  both  principle  and  the  current 
of  authority  concur  to  maintain  the  law  as  declared  in  Sharp  v.  Powell." 
We  have  examined  a  number  of  decided  cases  in  which  the  doctrine  in- 
volved here  is  discussed.  It  is  uniformly  conceded  that,  while  the  prin- 
ciple is  clear,  the  application  is  difficult,  and  variant  combinations  of 
fact  render  decided  cases  of  but  little  value  as  authorities.  W'hen  the 
facts  are  in  controversy,  or  more  than  one  conclusion  of  fact  may  be 
drawn,  the  question  is  submitted  to  the  jury.  When  the  facts  are  ad- 
mitted, or  found  by  the  jury,  and  the  conclusion  is  clear  and  certain,  it 
is  a  question  for  the  court. 

After  more  than  usual  reflection  and  investigation,  with  the  aid  of 
exhaustive  argument  by  able  counsel,  we  are  of  the  opinion  that  the 
defendant  was  entitled  to  have  the  court  instruct  the  jury  that,  if 
they  believed  the  e\ndence,  they  should  answer  the  first  issue  "No." 

We  have  not  discussed  the  several  instructions  given  by  his  Honor, 
because  our  opinion  renders  it  unnecessary  to  do  so.  It  is  but  just, 
however,  to  say  that  his  Honor  followed  the  rule  laid  down  in  the  opin- 
ion of  the  Court.  There  was  some  difference  in  the  testimony,  to 
which  sufficient  weight  was  not  given. 

For  the  error  pointed  out,  there  must  be  a 
New  Trial. 


384  WILDER  V.    STANLEY.  [CHAP.  III. 


WILDER  V.   STANLEY. 
Supreme  Court  of  Vermont,  1893. 

[Reported  65  Vt.  145.] 

Case  for  the  negligence  of  the  defendant.  Heard  upon  the  report 
of  a  referee  at  the  September  term,  1892,  Thompson,  J.,  presiding. 
Judgment  for  the  plaintiff.     The  defendant  excepts. 

The  plaintiff  and  defendant  owned  and  occupied  adjoining  pas- 
tures. The  colts  of  the  plaintiff  escaped  from  his  pasture  into  the 
pasture  of  the  defendant  over  a  portion  of  the  di\-ision  line  fence,  which 
it  was  the  duty  of  the  defendant  to  maintain.  From  the  defendant's 
pasture  they  passed  into  the  pasture  of  one  Willey.  While  there 
they  started  from  some  cause  and  ran  back  towards  the  pasture  of  the 
defendant,  and  in  so  doing  one  of  them  ran  against  the  barbed  wire 
fence  between  the  pasture  of  Willey  and  that  of  the  defendant,  and 
severed  the  jugular  vein,  from  which  it  died. 

The  referees  found  that  at  the  time  of  the  accident  one  Tracy  was, 
without  any  authority  from  either  the  plaintiff  or  defendant,  attempting 
to  drive  the  colts  from  Wille;y's  pasture  into  that  of  the  plaintiff,  and 
submitted  an  alternative  finding;  for  the  defendant,  if  the  unauthorized 
act  of  Tracy  was  the  legal  cause  of  the  injury;  for  the  plaintiff,  if  the 
defective  fence  of  the  defendant  was  the  cause  of  the  injury. 

Being  directed  to  report  that  evidence  upon  which  they  based 
their  finding  that  Tracy  was  attempting  to  drive  the  colts  back  to 
the  pasture  of  the  plaintiff,  it  appeared  that  Tracy  himself  was  in- 
troduced as  a  witness,  and  testified  that  he  saw  the  colts  of  the  plain- 
tiff in  Willey's  pasture  playing  with  the  colts  of  one  Kendall,  who  owned 
an  adjoining  pasture,  across  the  fence;  that  one  of  Kendall's  colts 
kicked  the  top  rail,  and  so  started  the  colts  of  the  plaintiff.  L^pon 
cross-examination  he  was  asked  if  he  did  not  soon  after  the  accident 
say  to  several  persons  that  he  was  at  the  time  driving  the  colts  back, 
which  he  denied.  Thereupon  these  persons  were  inquired  of,  and  testi- 
fied that  he  had  so  stated  to  them;  and  this  was  the  only  evidence  of 
the  fact  before  the  referees.^ 

Ross,  Ch.  J.  The  defendant  contends  that  the  referees  have  not 
found  that  the  colt  injured  escaped  over  the  defective  portion  of  the 
di\ision  fence,  which  it  was  the  duty  of  the  defendant  to  maintain  and 
keep  in  repair.  This  contention  is  not  sustained  by  the  report.  They 
first  find  that  at  the  time  of  the  injury  complained  of  the  defendant's 
portion  of  the  fence  was  insufP.cient  at  certain  points  described;  then 
that,  on  September  20,  1888,  the  plaintiff's  colts  escaped  from  his 
pasture  into  the  defendant's  pasture,  over  or  through  the  gap  or  break 
in  the  defendant's  portion  of  the  fence;   and  again,  "If  .  .  .  the  unlaw- 

1  See  also  Phillips  v.  Dewald,  79  Ga.  732,  7  S.  E.  151  —  Ed. 


SECT,  v.]  WILDER   V.    STANLEY.  385 

ful  and  defective  fence  over  or  through  which  we  find  the  plaintiff's 
colt  passed  on  the  20th  day  of  September,  1888,  or  a  short  time  prior 
thereto,"  etc.  The  referees  nowhere  modify  or  change  these  findings, 
that  the  colt  escaped  over  the  defective  portion  of  the  defendant's 
fence  wherever  it  did  escape  from  the  plaintiff's  pastm-e,  on  that 
occasion.  Subsequently  in  their  report  the  referees  find  that  no  CN-idence 
showed  how  long  before  September  20,  1888,  the  colt  escaped  from  the 
plaintiff's  pasture,  and  that  they  cannot  find  the  exact  time  prior  when 
it  did  escape.  Hence,  the  plaintiff's  colt,  which  was  killed  on  Sep- 
tember 20th,  1888,  was  away  from  the  plaintiff's  pasture  on  that  occa- 
sion through  the  negligence  of  the  defendant,  or  his  failure  to  discharge 
his  duty  to  the  plaintiff  in  maintaining  his  portion  of  the  division 
fence  in  the  manner  required  by  law;  and,  as  said  by  Smith,  J.,  in  Lee 
«.  Riley,  18  C.  B.  N.  S.  (114  E.  C.  L.  722),  cited  \\ath  approval  by 
this  court  in  Tupper  v.  Clark,  43  Vt.  200,  adapted  to  the  facts  of  this 
case,  it  was  through  the  defendant's  negligence  that  the  colt  and 
barbed  wire,  causing  its  death,  came  together.  The  judgment  of  the 
county  court  was  therefore  correct,  unless  the  facts  found  by  the  ref- 
erees show  that  some  other  independent  cause,  disconnected  with  the 
negligence  of  the  defendant,  occasioned  the  death  of  the  colt. 

II.  The  defendant  contends  that  the  facts  found  in  regard  to  the  acts 
of  Hiram  Tracy  show  such  an  independent,  disconnected  cause.  There 
are  several  sufficient  answers  to  this  contention.  There  was  no  legitimate 
evidence  before  the  referees  to  show  that  Tracy  started  up  or  drove 
the  colts.  Tracy  was  not  a  party,  and  his  declarations  to  the  effect 
that  he  started  up  or  undertook  to  drive  the  colts  on  the  occasion,  if 
established,  were  not  exadence  which  the  referees  could  lawfully  use 
to  establish  the  fact.  He  denied  that  he  started  up  or  drove  the  colts. 
All  his  declarations  shown  were  in  regard  to  what  he  was  intending,  or 
what  he  had  done.  They  were  not  of  the  res  gestae,  as  they  did  not 
accompany  and  explain,  or  characterize  his  act  of  starting  up  or  driv- 
ing the  colts.  There  was  no  other  evidence  tending  to  establish  the 
fact  that  he  started  up  or  drove  the  colts  on  the  occasion  of  the  in- 
jury. If  he  did,  it  is  not  found  that  his  act  was  negligently  done.  The 
colts  had  escaped  through  the  negligence  of  the  defendant.  The  plain- 
tiff had  the  right  to  pursue  and  return  them  in  a  proper  manner,  or 
to  employ  Tracy  to  do  so.  He  mightnot  be  able  to  catch  and  lead 
them  back.  He  might  be  obliged  to  drive  them  in  a  prudent  manner. 
If  Tracy  had  been  employed  by  the  plaintiff  —  as  he  was  not  —  to 
defeat  the  right  of  recovery,  it  must  have  been  found,  as  it  is  not,  that 
Tracy  started  or  drove  the  colts  negligently.  The  escape  being  through 
the  negligence  of  the  defendant,  that  negligence  accompanied  the 
colts  while  roaming,  by  reason  of  it,  away  from  the  plaintiff's  pasture. 
Inasmuch  as  Tracy  was  not  the  servant  of  the  plaintiff,  if  he  volun- 
tarily negligently  started  up  or  drove  the  colt  at  the  time  it  was  in- 
jured, Tracy's  negligence  would  be  concurrent  with  that  of  the  defend- 


Cx! 


j(A, 


386  TURNEK    V.   PAGE.  [CHAP.  III. 

ant  in  causing  the  death  of  the  colt.  In  such  a  case  both  or  either  of 
the  wrong  doers  are  liable  for  the  injury  and  damage  caused  by  their 
concurrent  negligence.  Hence,  this  contention  of  the  defendant  is 
not   maintainable. 

Judgment  affirmed. 


TURNER  V.  PAGE. 
Supreme  Judicial  Court  of  Massachusetts,  1904. 

[Reported  186  Ma^s.  600.] 

Tw' o  ACTIONS  OF  TORT,  One  by  a  married  woman  for  personal  injuries, 
and  the  other  by  her  husband  for  loss  of  con:3ortium  and  expenses,  and 
for  injuries  to  the  buggy  in  which  the  plaintiff  in  the  first  case  was 
sitting  when  the  accident  occurred,  alleged  to  have  been  caused  by 
the  negligence  of  the  defendant's  servant.    Writs  dated  May  25,  1903. 

At  the  trial  in  the  Superior  Court  before  Gaskill,  J.,  it  appeared  that 
the  plaintiff  in  the  second  case  had  gone  into  a  bank  on  Central  Street 
in  Gardner,  lea\'ing  his  wife  sitting  in  the  buggy,  when  a  pair  of  horses, 
attached  to  a  tip  cart  belonging  to  the  defendant  and  without  a  driver, 
ran  into  the  buggy,  the  pole  of  the  tip  cart  breaking  the  back  of  the 
buggy  and  throwing  out  the  plaintiff  in  the  first  case;  that  the  driver 
of  the  tip  cart  had  left  his  horses  standing  eight  or  ten  feet  from  a 
railroad  track  while  he  w^ent  back  about  six  or  eight  feet  to  pick  up  a 
part  of  his  load  of  stove  ^('ood  which  had  dropped  from  the  cart;  that 
there  was  a  sw^itching  engine  shifting  back  and  forth  over  the  crossing, 
puffing  and  blowing;  that  the  horses  suddenly  started  and  ran,  the  driver 
running  after  them  in  vain;  that  one  Buffum  tried  to  stop  the  horses 
by  standing  in  front  of  them  and  holding  up  a  wooden  rake  which  he 
had  in  his  hand;  that  when  the  horses  came  upon  him  he  jumped 
aside  hitting  or  touching  the  head  of  one  of  them  wdth  the  rake; 
and  that  the  horses  somewhat  changed  their  course  and  ran  into 
the  buggy  standing  by  the  sidewalk  as  above  described. 

At  the  close  of  the  evidence  the  defendant  asked  the  judge  to  make 
the  following  rulings: 

"1.  Upon  all  the  evidence,  the  plaintiff  is  not  entitled  to  recover. 

"2.  There  is  no  sufficient  evidence  of  negligence  on  the  part  of  the 
defendant. 

"3.  There  is  no  sufficient  e\adence  of  negligence  on  the  part  of  the 
driver  of  the  horses  which  ran  away  to  warrant  a  recovery. 

"4.  If  the  horses  which  ran  into  the  plaintiff  would  not  have  so 
collided  and  the  injuries  w^ould  not  have  occurred,  except  for  the  in- 
tervening attempt  of  BufPum  to  stop  the  horses,  coupled  with  the 
blow  with  the  rake  over  the  head  of  the  nigh  horse,  then  the  plaintiff 
cannot  recover." 


SECT,  v.]         COLE    V.    GERMAN    SAVINGS    &   LOAN    SOCIETY.  387 

LoRiNG,  J.^  The  difficulty  with  the  defendant's  argument  .  .  . 
in  support  of  his  exception  to  the  refusal  to  give  the  fourth  ruling  asked 
for  lies  in  the  assumption  that  the  persons  who  attempt  to  stop  run- 
away horses  will  in  fact  act  as  the  typical  prudent  man  would  act. 
We  are  of  opinion  on  the  contrary  that  among  the  natural  and  probable 
consequences  of  negligently  letting  a  pair  of  horses  run  away  it  is 
competent  to  find  that  they  will  swerve  to  one  side  or  the  other  on 
account  of  the  acts  of  persons  who  try  to  stop  them  in  a  way  which 
would  not  have  been  adopted  by  a  prudent  man,  including  wa\dng  a 
rake  and  hitting  one  of  the  horses  over  the  head  with  it.  The  case 
comes  within  Lane  v.  Atlantic  Works,  111  Mass.  136;  Koplan  v.  Boston 
Gas  Light  Co.,  177  Mass.  15;  Boston  Woven  Hose  &  Rubber  Co.  v. 
Kendall,  178  Mass.  232;  Murray  v.  Boston  Ice  Co.  180  Mass.  165; 
see  also  Clifford  v.  Atlantic  Cotton  Mills,  146  Mass.  47,  48  (where  the 
earlier  cases  are  collected) ;  and  does  not  come  within  Stone  v.  Boston 
&  Albany  Railroad,  171  Mass.  536;  Glynn  t*.  Central  Railroad,  175  Mass. 
510;  Glassey  v.  Worcester  Consolidated  Street  Railway,  185  Mass.  315. 
See  also  Clifford  v.  Atlantic  Cotton  Mills,  146  Mass.  47,  49. 

Exceptions  overruled. 


COLE  V.  GERMAN  SAVINGS  &  LOAN  SOCIETY. 
Circuit  Court  of  Appeals,  1903. 

[Reported  124  Fed.  116.] 

The  plaintiff,  Viola  Cole,  sued  the  German  Sa\'ings  &  Loan  Society 
for  damages  which  she  alleged  were  the  result  of  its  negligence  in  the  care 
and  operation  of  its  elevator,  and  at  the  close  of  the  trial  these  facts 
were  established:  About  4  o'clock  in  the  afternoon  of  a  bright  sunshiny 
day  in  May,  the  plaintiff,  a  lady  32  years  of  age,  entered  the  hall  of  a 
building  of  the  German  Sa\-ings  &  Loan  Society  for  the  purpose 
of  riding  on  an  elevator  to  an  upper  story.  The  well  of  this  elevator 
was  about  forty  feet  distant  from  the  entrance  to  the  hall,  into  which 
it  opened.  It  was  separated  from  the  hall  by  a  door,  which  at  the  time 
was  standing  open  not  more  than  ten  inches.  As  the  plaintiff  passed 
through  this  hall,  a  boy  who  was  a  stranger  to  her,  and  who  was  not 
employed  by  or  authorized  to  act  for  the  defendant,  but  who  had 
been  seen  by  one  of  the  witnesses  prior  to  that  time  endeavoring  to 
operate  the  elevator  once,  and  riding  upon  it  and  \isiting  the  boy  in 
charge  of  it  a  dozen  times,  hurriedly  passed  the  plaintiff,  seized  the 
sliding  door  to  the  elevator  shaft,  pushed  it  back  as  far  as  it  would  go, 
and  stepped  back.  The  elevator  was  at  an  upper  story  in  charge  of  its 
regular  operator.    The  plaintiff  supposed  that  the  strange  boy  was  the 

^  Part  of  the  opinion  is  omitted. —  Ed. 


}'i 


388  COLE    V.    GERMAN    SAVINGS    &   LOAN    SOCIETY.       [CHAP.  III. 

operator  of  the  elevator,  stepped  into  the  shaft,  and  fell  101^  feet 
to  its  bottom,  and  was  seriously  injured.  The  hall  was  dark  and  gloomy. 
It  was  difficult  to  see  the  elevator  at  the  lower  floor,  but  it  was  not 
impossible  to  see  it.  When  it  was  not  at  that  floor,  nothing  but  dark- 
ness was  \-isible  in  the  well  below  it.  There  was  no  artificial  light  in  the 
hall  at  the  time  of  the  accident,  although  there  were  the  means  to  make 
an  electric  light,  which  was  often  lighted,  just  in  front  of  the  door 
of  the  shaft.  This  door  was  furnished  with  a  hook,  which,  when  the 
door  was  closed,  entered  a  slot  and  grasped  a  bar.  But  the  door  could 
be  opened  from  the  outside,  even  when  it  was  latched  by  lifting  it  and 
pushing  it  back.  When  the  employee  in  charge  of  the  elevator  jammed 
the  door,  it  would  bound  back  and  slide  open  from  1  to  10  inches. 
The  court  instructed  the  jury,  upon  this  state  of  facts,  to  return  a  ver- 
dict for  the  defendant,  and  this  charge,  together  with  certain  rulings 
rejecting  proffered  testimony,  is  assigned  as  error. 

Sanborn,  C.  J.  The  crucial  question  in  this  case  is  whether  or  not 
the  negligence  of  the  defendant  was  the  proximate  cause  of  the  injury 
of  the  plaintiff,  so  that,  in  the  legal  acceptation  of  that  term,  it  con- 
tributed to  her  hurt.  "Causa  proxima,  non  remota,  spectatur,"  and 
those  damages  which  are  the  result  of  remote  causes  form  a  part  of  that 
large  mass  of  resulting  losses  styled  "damnum  absque  injuria,"  for 
which  the  law  permits  no  recovery.  A  clear  conception  of  the  test 
which  distinguishes  the  proximate  from  the  remote  cause  is,  therefore, 
the  first  and  the  indispensable  prerequisite  to  a  true  answer  to  the 
question  which  this  case  presents ;  for  by  that  test  alone  must  the  issue 
here,  in  all  the  varying  garbs  in  which  the  ingenuity  of  counsel  has 
clothed  it,  be  tried  and  be  ultimately  determined.  This  test  is  most 
clearly  seen  from  the  standpoint  of  the  injury  inflicted,  and  is  well  dis- 
closed by  these  indisputable  principles  of  the  law: 

An  injury  that  is  the  natural  and  probable  consequence  of  an  act  of 
negligence  is  actionable,  and  such  an  act  is  the  proximate  cause  of 
the  injury.  But  an  injury  which  could  not  have  been  foreseen  nor 
reasonably  anticipated  as  the  probable  result  of  an  act  of  negligence 
is  not  actionable,  and  such  an  act  is  either  the  remote  cause,  or  no 
cause  whatever,  of  the  injury.  An  injury  that  results  from  an  act  of 
negligence,  but  that  could  not  have  been  foreseen  or  reasonably  antici- 
pated as  its  probable  consequence,  and  that  would  not  have  resulted 
from  it,  had  not  the  interposition  of  some  new  and  independent  cause 
interrupted  the  natural  sequence  of  events,  turned  aside  their  course, 
and  produced  it,  is  not  actionable.  Such  an  act  of  negligence  is  the 
remote,  and  the  independent  intervening  cause  is  the  proximate,  cause 
of  the  injury.  A  natural  consequence  of  an  act  is  the  consequence  which 
ordinarily  follows  it  —  the  result  which  may  be  reasonably  anticipated 
from  it.  A  probable  consequence  is  one  that  is  more  likely  to  follow  its 
supposed  cause  than  it  is  to  fail  to  follow  it.  Chicago,  St.  P.,  M.  &  O. 
Ry.  Co.  V.  Elliott,  55  Fed.  949,  952,  5  C.  C.  A.  347,  350,  20  L.  R.  A. 


SECT,  v.]        COLE    V.    GERMAN    SAVINGS   A   LOAN    SOCIETY.  389 

582;  Railway  Co.  v.  Kellogg,  94  U.  S.  469,  475,  24  L.  Ed.  256;  Hoag  v. 
Railroad  Co*!,  85  Pa.  293,  298,  299,  27  Am.  Rep.  6.53. 

Let  us  try  the  issue  in  hand  by  these  familiar  rules.  It  goes  with- 
out saying  that  the  injury  of  the  plaintiff  was  the  natural  and  probable 
consequence  of  the  act  of  the  trespasser  who  preceded  the  plaintiff  to 
the  elevator,  opened  the  door  of  the  well,  and  stepped  back,  thus  in- 
viting her  to  pass  into  the  shaft.  No  one  can  contemplate  this  act  for 
a  moment  without  a  clear  conviction  that  the  fall  and  the  injury 
were  its  natural  and  probable  result.  This  act  was,  therefore,  a  proxi- 
mate cause  of  the  injury  —  an  act  of  negligence  which  formed  the 
basis  for  an  action  for  damages  against  the  strange  boy  who  committed 
it.  It  was  not  only  the  nearest  cause  of  the  disaster  in  point  of  time, 
but  it  was  the  mo\ing  and  efficient  cause  —  the  cause  without  which, 
so  far  as  finite  vision  can  see,  the  accident  would  never  have  occurred. 

Counsel  for  the  plaintiff  do  not  deny  this  obvious  conclusion,  but 
they  insist  that  the  negligence  of  the  strange  boy  merely  concurred  with 
the  acts  of  omission  and  commission  of  the  defendant;  and  they  invoke 
the  conceded  rule  that  it  is  no  defense  to  the  damages  resulting  from 
an  act  of  negligence  that  the  carelessness  of  another  concurred  with  the 
negligence  of  the  defendant  to  produce  the  injury.  Among  other 
authorities  they  cite  the  case  of  Union  Pac.  R.  Co.  v.  Callaghan,  56 
Fed.  988,  993,  994,  6  C.  C.  A.  205,  210,  in  support  of  this  position.  In 
that  case  the  negligence  of  a  conductor  of  a  train  of  cars  who  recklessly 
directed  his  engineer  to  disregard  a  signal  to  stop,  which  was  given  at 
a  station  they  were  passing,  concurred  with  the  succeeding  failure  of  the 
engineer  to  observe  and  heed  other  signals  of  danger,  and  letl  him  to 
drive  the  train  upon  a  defective  bridge,  and  this  court  held  that  the 
concurring  negligence  of  the  engineer  was  dependent  upon  the  prior 
reckless  order  of  the  conductor;  that  the  engineer's  negligence  was  a 
dependent,  and  not  an  independent,  cause  of  the  disaster,  that  it  did 
not  break  and  turn  aside  the  natural  sequence  of  events  between  the 
recklessness  of  the  conductor  and  the  accident,  but  simply  permitted 
that  act  to  work  out  its  natural  and  probable  result;  and  that  for  this 
reason  it  constituted  no  defense  to  the  action  for  damages  for  the 
negligence  of  the  conductor.    In  the  opinion  this  court  said : 

"The  independent  intervening  cause  that  will  prevent  a  recovery 
on  account  of  the  act  or  omission  of  a  wrongdoer  must  be  a  cause  which 
interrupts  the  natural  sequence  of  events,  turns  aside  their  course, 
prevents  the  natural  and  probable  result  of  the  original  act  or  omission, 
and  produces  a  different  result,  that  could  not  have  been  reasonably 
•  anticipated."    56  Fed.  993,  994,  6  C.  C.  A.  210. 

But  it  also   said: 

"No  act  contributes  to  an  injury,  in  the  legal  acceptation  of  that 
term,  unless  it  is  a  proximate  cause  of  that  injury  —  unless  it  is  near 


I 


390  COLE   V.    GERMAN    SAVINGS   &   LOAN   SOCIETY.      [CHAP.  IIL 

to  it  in  the  order  of  causation.     Jacobus  v.  Railway  Co.,  20  Minn. 
125,  134  [(Gil.  110),  18  Am.  Rep.  360]."    56  Fed.  990, 'o  C.  C.  A.  207. 

The  test  of  the  liability,  therefore,  in  cases  of  concurring  negligence 
is  the  same  that  it  is  in  all  other  actions  for  negligence.  It  is  the  true 
answer  to  the  questions:  Was  the  injury  the  natural  and  probable 
consequence  of  the  act  on  which  the  action  is  based?  Was  it  reasonably 
to  be  anticipated  from  that  act?  If  it  was,  the  action  may  be  main- 
tained, although  the  negligence  of  another  concurred  to  produce 
the  untoward  result.  If  it  was  not,  the  act  of  negligence  will  not  sus- 
tain an  action,  whether  the  act  of  another  concurred  or  failed  to  concur 
to  produce  it.  A  negligent  act  from  which  an  injury  could  not  have 
been  foreseen  or  reasonably  anticipated  is  too  remote  in  the  line 
of  causation  to  sustain  an  action  for  an  injury  in  every  case,  and  the 
concurring  negligence  of  another  cannot  make  it  less  remote,  nor 
charge  him  who  committed  it  with  responsibility  for  it  to  which  he 
would  not  have  been  liable  to  answer  in  the  absence  of  the  negligence 
of  the  third  party. 

It  is  not  here  asserted  that  there  may  not  be  many  cases  in  which 
one  who  has  committed  a  negligent  act  may  be  liable  for  an  injury 
which  is  the  result  of  his  wrongful  act  and  of  the  concurring  negligence 
of  another,  but  which  would  not  have  followed  in  the  absence  of  the 
recklessness  of  the  third  party.  The  succeeding  or  concurring  negli- 
gence of  another  and  its  evil  consequences  may  be  the  natural  and 
probable  result  of  a  defendant's  act  of  negligence,  so  that  the  latter  may 
be  actionable.  But,  unless  the  ultimate  injury  is  the  natural  and  prob- 
able consequence  of  the  defendant's  act  of  negligence,  that  act  is  not 
the  proximate  cause  of  the  injury,  and  no  action  can  be  maintained  upon 
it,  whether  the  succeeding  injury  results  from  that  act  alone  or  from 
that  act  and  the  concurring  or  succeeding  negligence  of  a  stranger. 
In  other  words,  the  concurring  negligence  of  another  cannot  trans- 
form an  act  of  negligence  which  is  so  remote  a  cause  of  an  injury  that  it 
is  not  actionable  into  a  cause  so  proximate  that  an  action  can  be  main- 
tained upon  it.  It  cannot  create  a  liability  against  one  who  does  not 
legally  cause  it,  or  make  an  injury  the  natural  and  probable  result  of 
a  prior  act  of  negligence  which  was  not,  or  would  not  have  been,  such 
a  result  in  its  absence.  No  act  contributes  to  an  injury,  in  the  legal 
acceptation  of  that  term,  unless  it  is  a  proximate  cause  of  that  injury — 
unless  that  injury  could  and  ought  to  have  been  foreseen  or  reasonably 
anticipated  as  its  probable  consequence.  The  conclusion  inevitably 
follows  that  the  concurring  negligence  of  the  trespasser  in  this  case 
does  not  answer  the  primary  question  whicli  the  action  presents.  It 
leaves  it  entirely  undetermined,  and  that  question  still  recurs.  Was 
the  injury  of  the  plaintiff  the  natural  and  probable  result  of  the  acts 
or  omissions  of  the  defendant?    Let  us  see. 

That  negligence  consisted  of  permitting  such  a  degree  of  darkness 
in  the  hall  opposite  the  door  which  opened  into  the  well  of  the  elevator 


SECT,  v.]         COLE    V.    GERMAN    SAVINGS    &   LOAN    SOCIETY.  391 

that  it  was  difficult  to  see  whether  or  not  the  elevator  was  there;  of 
allowing  boys  to  visit  in,  ride  upon,  and  sometimes  to  operate  the  eleva- 
tor; of  allowing  the  boy  who  opened  the  door  to  the  well  to  ride  and 
visit  in  the  elevator  about  a  dozen  times,  and  to  endeavor  to  oper- 
ate it  at  least  once;  of  neglecting  to  provide  a  lock  for  the  door  which 
would  prevent  any  one  from  opening  it  from  the  outside;  and  of  per- 
mitting the  door  to  stand  open  from  one  to  ten  inches.  The  burden  of 
proof  was  upon  the  plaintiff  to  establish  a  state  of  facts  which  would 
naturally  lead  to  the  conclusion  that  her  entrance  and  fall  in  the  well 
were  the  natural  and  probable  consequences  of  these  acts  of  negligence 
committed  by  the  defendant.  If  she  failed  to  successfully  bear  this 
burden,  she  was  entitled  to  no  damages  from  the  Savings  &  Loan 
Society.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  v.  Elliott,  55  Fed.  949,  5 
C.  C.  A.  347,  20  L.  R.  A.  582;  Union  Pac.  Ry.  Co.  v.  Callaghan,  56 
Fed.  988,  993,  6  C.  C.  A.  205,  210.  Where  is  the  evidence  to  sustain 
such  a  conclusion?  The  best  e\ddence  upon  such  an  issue  is  the  testi- 
mony of  experience,  because  what  has  been  is  our  best  guide  to  what 
will  be.  The  challenged  acts  and  omissions  of  the  defendant  had  been 
in  operation  for  many  months.  If  they  had  produced  such  a  conse- 
quence as  the  fall  and  injury  of  the  plaintiff  in  the  past,  that  fact 
would  have  raised  a  strong  presumption  that  this  was  their  natural 
tendency.  If  they  had  produced  no  such  result,  the  counter  presump- 
tion was  not  less  strong.  It  is  for  this  reason  that  courts  frequently 
speak  of  the  fact  that  no  such  injuries  as  those  upon  which  the  actions 
under  their  consideration  are  based  have  occurred  before  as  persuasive 
evidence  that  the  disasters  could  not  have  been  foreseen  or  reasonably 
anticipated  as  the  probable  result  of  the  acts  upon  which  the  suits  are 
based.  Cleveland  v.  New  Jersey  Steamboat  Co.,  68  N.  Y.  306,  312. 
There  is  no  evidence  in  this  case  that  any  such  accident  or  injury  as 
that  from  which  the  plaintiff  suffers  ever  followed  the  defendant's  acts 
of  negligence  before  the  plaintiff  fell  into  the  well.  Not  only  this,  but 
there  is  no  evidence  that  the  accident  and  injury  to  the  plaintiff  resulted 
from  these  acts  or  omissions,  but  positive  and  con\ancing  testimony 
that  they  were  produced  by  the  wrongful  act  of  another. 

Another  class  of  evidence  sometimes  presented  in  cases  of  this  nature 
consists  of  the  testimony  of  witnesses  that  the  negligence  of  the  defend- 
ant which  forms  the  basis  of  the  action  has  at  times  placed  them  in 
imminent  danger  of  like  accidents,  from  which  they  have  hardly 
escaped  without  injury.  But  this  record  is  barren  of  evidence  of  this 
character.  Experts  sometimes  come  to  say  that  a  piece  of  machinery 
was  so  defective,  or  the  method  of  its  operation  of  so  dangerous  a  char- 
acter, that  in  their  opinion  the  condition  or  the  method  of  operation 
naturally  tended  to  an  accident  or  injury  of  the  nature  of  that  upon 
which  the  action  on  trial  is  based.  But  no  expert  gave  such  testimony 
in  the  case  at  bar.  The  record  is  barren  of  all  testimony  upon  the 
subject,  except  proof  of  the  acts  and  omissions  of  the  defendant  which 


392  COLE    V.    GERMAN   SAVINGS    &   LOAN    SOCIETY.      [cHAP.  III. 

have  been  recited,  and  of  the  fact  that  a  proximate  cause  of  the  acci- 
dent was  the  act  of  the  trespasser  who  opened  the  door  and  extended  to 
the  plaintiff  the  invitation  to  step  into  the  darkness  and  to  fall,  which  she 
accepted.  There  is  nothing  in  the  evidence  to  the  effect  that  the  de- 
fendant's acts  or  omissions  ever  had  produced,  or  ever  would  in  the 
natural  sequence  of  events  have  produced,  any  such  injury  as  that  from 
which  the  plaintiff  is  suffering,  while  the  proof  is  plenary  that  it  was  the 
act  of  the  stranger  which  actually  caused  it. 

But  counsel  seek  to  escape  from  the  natural  effect  of  this  evidence 
by  the  contention  that  the  voluntary  act  of  the  strange  boy  in  opening 
the  door  of  the  well  when  the  elevator  was  at  an  upper  floor  could  and 
should  have  been  foreseen  and  anticipated  as  the  probable  result  of  the 
unlocked  door,  of  the  visits  of  the  boy  upon  the  elevator,  and  of  his 
previous  attempt  to  operate  it.  This  argument  loses  sight  of  the  fact 
that  the  wrongful  act  of  this  trespasser  was  not  committed  in  operating, 
or  in  attempting  to  operate,  the  elevator,  in  riding  or  \'isiting  upon  it,  or 
in  the  doing  of  any  act  which  he  had  ever  done  before.  He  had  never 
opened  the  door  into  the  empty  well  and  invited  a  patron  of  the  elevator 
to  step  into  it  before  this  accident  occurred.  How  could  any  one  reason- 
ably anticipate  that  he  would  be  guilty  of  such  an  act?  The  facts  that 
he  had  visited  upon  the  elevator  and  had  attempted  to  operate  it  with 
the  permission  of  the  employee  in  charge  of  it  gave  no  warning  of  any 
such  purpose  on  his  part  or  of  the  probability  of  any  such  act.  Mr. 
Justice  Holmes  in  delivering  the  opinion  of  the  Supreme  Court  of 
Massachusetts  in  Burt  v.  Advertiser  Newspaper  Co.,  154  Mass.  238, 
247,  28  N.  E.  1,  6,  13  L.  R.  A.  47,  said:  "Wrongful  acts  of  indepen- 
dent third  persons,  not  actually  intended  by  the  defendant,  are  not 
regarded  by  the  law  as  natural  consequences  of  his  wrong,  and  he  is 
not  bound  to  anticipate  the  general  probability  of  such  acts,  any  more 
than  a  particular  act  by  this  or  that  individual." 

The  act  of  the  strange  boy  was  a  violation  of  the  law.  It  was  a  tres- 
pass upon  the  property  and  upon  the  rights  of  the  defendant.  The  de- 
fendant could  not  foresee  or  reasonably  anticipate,  and  it  was  not  re- 
quired to  anticipate  or  to  provide  for,  violations  of  the  law  and  trespasses 
upon  its  property  by  its  fellow  citirens.  The  legal  presumption  was 
that  this  boy  and  all  boys  and  men  would  obey  the  law,  would  refrain 
from  committing  trespasses  upon  the  defendant's  rights  or  property, 
and  would  discharge  their  moral  and  social  duties.  The  defendant 
had  the  right  to  indulge  in  this  presumption,  and  to  calculate  the  nat- 
ural and  probable  result  of  its  acts  and  omissions  upon  this  supposition. 
Indeed,  it  could  reckon  upon  no  other;  for  it  is  alike  impracticable 
and  impossil)le  to  predicate  and  administer  the  rights  and  remedies  of 
men  upon  the  theory  that  their  associates  and  fellows  will  either  vio- 
late the  laws  or  disregard  their  duties.  Little  Rock  &  M.  R.  Co.  v. 
Barry,  84  Fed.  944,  950,  28  C.  C.  A.  644,  650,  43  L.  R.  A.  349.  The 
mischievous  act  of  the  strange  boy  which  caused  the  plaintiff's  hurt 


SECr.  v.]        COLE   V.    GEKMAN   SAVINGS    &   LOAN    SOCIETY.  393 

could  not  have  been  foreseen  nor  reasonably  anticipated  as  the  probable 
result  of  the  defendant's  acts  of  negligence,  because  it  was  a  \-iolation 
of  law  and  of  duty,  and  because  there  was  nothing  in  previous  experience, 
observation,  or  information  to  lead  to  such  an  anticipation.  This  con- 
cludes the  discussion  of  the  facts  relative  to  the  relations  and  situation 
of  the  parties  as  disclosed  by  the  record,  in  view  of  the  arguments  of 
the  counsel  for  the  plaintiff. 

It  is  now  no  longer  difficult  to  determine  whether  or  not  the  acts  of  the 
defendant  were  the  proximate  cause  of  the  injury  to  the  plaintiff. 

Wharton  says : 

"  Supposing  that,  had  it  not  been  for  the  intervention  of  a  responsible 
third  party,  the  defendant's  negligence  would  have  produced  no  dam- 
age to  the  plaintiff,  is  the  defendant  liable  to  the  plaintiff"?  This  ques- 
tion must  be  answered  in  the  negative,  for  the  general  reason  that 
causal  connection  between  negligence  and  damage  is  broken  by  the 
interposition  of  responsible  human  action.  I  am  negligent  on  a  particu- 
lar subject-matter  as  to  which  I  am  not  contractually  bound.  Another 
person,  moving  independently,  comes  in,  and  either  negligently  or 
maliciously  so  acts  as  to  make  my  negligence  injurious  to  a  third  person. 
If  so,  the  person  so  intervening  acts  as  a  nonconductor,  and  insulates 
my  negligence,  so  that  I  cannot  be  sued  for  the  mischief  which  the  per- 
son so  intervening  directly  produces.  He  is  the  one  who  is  liable  to  the 
person  injured."    Whart.  Neg.  §  134. 

Bishop  on  Noncontract  Law,  §  42,  says : 

"  If,  after  the  cause  in  question  has  been  in  operation,  some  independ- 
ent force  comes  in  and  produces  an  injury,  not  its  natural  or  probable 
effect,  the  author  of  the  cause  is  not  responsible." 

Judge  Cooley  and  the  Supreme  Court  of  North  Carolina  say  in  his 
words : 

"  If  the  original  wrong  only  becomes  injurious  in  consequence  of  the 
intervention  of  some  distinct  wrongful  act  or  omission  by  another,  the 
injury  shall  be  imputed  to  the  last  wrong  as  the  proximate  cause,  and 
not  to  that  which  was  more  remote."  Clark  v.  Wilmington,  etc.,  R.  Co., 
109  N.  C.  430,  449,  14  S.  E.  43,  47,  14  L.  R.  A.  749. 

The   Supreme   Court   declares: 

"  The  question  always  is,  was  there  an  unbroken  connection  between 
the  wrongful  act  and  the  injury,  a  continuous  operation?  Did  the  facts 
constitute  a  continuous  succession  of  events,  so  linked  together  as  to 
make  a  natural  whole,  or  was  there  some  new  and  independent  cause 
intervening  between  the  wrong  and  the  injury?"  Railway  Company  v. 
Kellogg,  94  U.  S.  469,  475,  24  L.  Ed.  256. 

And  again: 


394  COLE   V.    GERMAN   SAVINGS    &   LOAN    SOCIETY.      [CHAP.  III. 

"  The  proximate  cause  is  the  efficient  cause,  the  one  that  necessarily 
sets  the  other  causes  in  operation.  The  causes  that  are  merely  inci- 
dental, or  instruments  of  a  superior  or  controlling  agency,  are  not  the 
proximate  causes  and  the  responsible  ones."  Insurance  Company  v. 
Boon,  95  U.  S.  117,  130,  24  L.  Ed.  395. 

The  Circuit  Court  of  Appeals  for  the  Seventh  Circuit  holds  that: 

"  The  remote  cause  is  that  cause  which  some  independent  force  merely 
took  advantage  of  to  accomplish  something  not  the  probable  or  natural 
effect  thereof.  .  .  .  The  causal  connection  between  the  negligence  and 
the  hurt  is  interrupted  by  the  interposition  of  an  independent  human 
agency;  and,  as  Mr.  Wharton  expresses  the  thought,  'the  intervener 
acts  as  a  nonconductor,  and  insulates  the  negligence.'  The  test  is: 
Was  the  intervening  efficient  cause  a  new  and  independent  force,  acting 
in  and  of  itself  in  causing  the  injury  and  superseding  the  original 
wrong  complained  of,  so  as  to  make  it  remote  in  the  chain  of  causation, 
although  it  may  have  remotely  contributed  to  the  injury  as  an  occasion 
or  condition?"  Goodlander  Mill  Co.  v.  Standard  Oil  Co.,  63  Fed.  400, 
405,  11  C.  C.  A.  253,  258,  459,  27  L.  R.  A.  583. 

And  this  court  has  said : 

"An  injury  that  could  not  have  been  foreseen  or  reasonably  antici- 
pated as  the  probable  result  of  the  negligence  is  not  actionable,  nor  is 
an  injury  that  is  not  the  natural  consequence  of  the  negligence  com- 
plained of,  and  that  would  not  have  resulted  from  it,  but  for  the  inter- 
position of  some  new  independent  cause  that  could  not  have  been  an- 
ticipated." Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  v.  Elliott,  55  Fed.  949, 
951,  952,  5  C.  C.  A.  347,  349. 

Try  this  case  by  any  of  these  tests,  and  the  result  is  the  same.  The 
independent  voluntary  act  of  the  strange  boy  who  opened  the  door  of 
the  elevator  and  in^'ited  the  plaintiff  to  enter  the  well  was  incapable  of 
anticipation.  No  one  could  have  foreseen  it  as  the  probable  consequence 
of  the  acts  or  omissions  of  the  defendant.  It  broke  the  chain  of  causa- 
tion between  the  prior  negligence  of  the  defendant  and  the  injury  of  the 
plaintiff,  insulated  the  defendant's  acts  and  omissions  from  the  plaintiff's 
hurt,  and  imposed  upon  the  boy  who  willed  and  committed  the  act 
which  produced  the  injury  the  sole  liability  for  the  damages  which  re- 
sulted from  it.  The  acts  and  omissions  of  the  defendant  were  too  re- 
mote to  legally  contribute  to  the  injury  or  to  impose  liability  for  it. 
They  were  not  a  proximate  cause  of  the  accident,  and  the  mischievous 
and  wrongful  act  of  the  strange  boy  was  the  sole  mo\ang  efficient  prox- 
imate cause  that  produced  it.  Railroad  Co.  v.  Barry,  84  Fed.  944,  950, 
28  C.  C.  A.  644,  650,  43  L.  R.  A.  349;  Railroad  Co.  v.  ElHott,  55  Fed. 
949,  952,  5  C.  C.  A.  347,  350;  Finalyson  v.  MiUing  Co.,  67  Fed.  507,  512, 
14  C.  C.  A.  492,  496;  Railway  Co.  v.  Bennett,  69  Fed.  525,  16  C.  C. 
A.  300;  Railway  Co.  v.  Callaghan,  50  Fed.  988,  993,  6  C.  C.  A.  205, 


II 


SECT,  v.]        COLE    V.   GERMAN    SAVINGS   &   LOAN    SOCIETY.  395 

210;  Railway  Co.  v.  Moseley,  57  Fed.  921,  926,  6  C.  C.  A.  641,  646; 
Insurance  Co.  v.  Melick,  65  Fed.  178,  184,  12  C.  C.  A.  544,  550,  27 
L.  R.  A.  629;  Goodlander  Mill  Co.  v.  Standard  Oil  Co.,  63  Fed.  400, 
11  C.  C.  A.  253;  Laidlaw  v.  Sage,  158  N.  Y.  73,  98-102,  52  N.  E.  679, 
44  L.  R.  A.  216;  Trewatha  v.  Milling  Co.,  96  Cal.  494,  500,  28  Pac. 
571,  31  Pac.  561;  Avers  v.  Rochester  Ry.  Co.,  156  N.  Y.  104,  108,  50 
N.  E.  960;  Doherty  v.  Waltham,  4  Gray,  596;  Parker  v.  Cohoes,  10  Hun, 
531. 

Our  conclusion  has  not  been  reached  without  a  careful  perusal 
of  the  opinions  of  the  courts  in  the  cases  cited  by  counsel  for  the  plaintiff 
in  error,  especially  those  in  Colorado  Mortgage  &  Investment  Co.  v. 
Rees  (Colo.  Sup.)  42  Pac.  42;  Tousey  v.  Roberts,  114  N.  Y.  312,  21 
N.  E.  399,  11  Am.  St.  Rep.  655;  and  Lane  v.  Atlantic  Works,  111  Mass. 
136.  These  opinions  have  been  read  with  the  deference  and  consider- 
ation to  which  the  judgments  of  learned  and  conscientious  jurists 
are  always  entitled,  but  they  are  not  controlling  authority  in  a  federal 
court;  and  the  views  which  have  already  been  expressed  in  this  opinion, 
the  reasons  which  have  been  given  for  them,  and  the  authorities  which 
have  been  cited  in  support  of  them  commend  themselves  more  forcibly 
and  persuasively  to  our  minds  than  the  opinions  and  reasoning  in  the 
cases  upon  which  the  counsel  for  the  plaintiff  rely.  Jurisdiction  over 
controversies  between  citizens  of  different  states  was  conferred  upon 
the  national  courts  for  the  avowed  purpose  of  securing  to  the  litigants 
in  such  cases  the  benefit  of  the  independent  opinions  of  the  judges  of 
those  courts.  It  is  the  right  of  these  litigants  to  the  independent  and 
conscientious  judgment  of  the  judges  of  the  national  courts  to  whom 
they  present  their  controversies  upon  the  merits  of  the  issues  they  raise, 
and  a  complete  and  careful  discharge  of  the  duties  imposed  upon  them 
requires  of  the  members  of  the  federal  judiciary  that  they  shall  carefully 
form  and  express  their  independent  judgments  upon  the  questions  pre- 
sented by  such  controversies.  In  the  case  at  bar  this  duty  has  been  dis- 
charged, not  without  some  study,  deliberation,  and  care,  and  the  con- 
clusion of  this  court  is  that  the  record  before  it  conclusively  shows  that 
the  act  of  the  strange  boy  who  opened  the  door  of  the  well  of  the  elevator 
was  the  sole  proximate  cause  of  the  plaintiff's  injury. 

Counsel  earnestly  invoke  the  rule  announced  in  Railway  Co.  v. 
Kellogg,  94  U.  S.  469,  474,  476,  24  L.  Ed.  256,  which  was  followed  by 
this  court  in  Railway  Co.  v.  Callaghan,  6  C.  C.  A.  205,  208,  56  Fed. 
988,  991,  and  Insurance  Co.  v.  Mehck,  65  Fed.  178,  180,  12  C.  C.  A. 
544,  546,  27  L.  R.  A.  629,  that  the  question.  What  is  the  proximate 
cause  of  an  injury,  is  ordinarily  a  question  for  the  jury,  and  they  stren- 
uously maintain  that  the  Circuit  Court  erred  because  it  refused  to  sub- 
mit the  question  which  has  been  considered  to  the  jury  upon  the  trial 
below.  There  is,  however,  always  a  preliminary  question  for  the 
judge  at  the  close  of  the  evidence  before  a  case  can  be  submitted  to 
the  jury,  and  that  question  is,  not  whether  or  not  there  is  any  e\'idence. 


396  TEIS    V.    SMUGGLER   MINING   CO.  [CHAP.  Ill, 

but  whether  or  not  there  is  any  substantial  evidence  upon  which  a 
jury  can  properly  render  a  verdict  in  favor  of  the  party  who  produced 
it.  Brady  v.  Chicago  &  G.  W.  Ry.  Co.,  114  Fed.  100,  105,  52  C.  C. 
A.  48,  52,  53,  57  L.  R.  A.  712;  Railway  Co.  v.  Belliwith,  83  Fed.  437, 
441,  28  C.  C.  A.  358,  362;  Association  v.  Wilson,  100  Fed.  368, 
370,  40  C.  C.  A.  411,  413;  Commissioners  v.  Clark,  94  U.  S.  278,  284, 
24  L.  Ed.  59;  North  Pennsylvania  R.  Co.  v.  Commercial  Nat.  Bank, 
123  U.  S.  727,  733,  8  Sup.  Ct.  266,  31  L.  Ed.  287;  Railway  Co.  v. 
Converse,  139  U.  S.  469,  11  Sup.  Ct.  569,  35  L.  Ed.  213;  Laclede  Fire 
Brick  Mfg.  Co.  v.  Hartford  Steam  Boiler  Inspection  &  Ins.  Co.,  60 
Fed.  351,  354,  9  C.  C.  A.  1,  4;  Gowen  v.  Harley,  56  Fed.  973,  6  C.  C.  A. 
190;  Motey  v.  Granite  Co.,  74  Fed.  155,  157,  20  C.  C.  A.  366,  368.^ 


TEIS  V.  SMUGGLER  MINING  CO. 
Circuit  Court  of  Appeals,  1907. 

[Reported  158  Fed.  260.] 

Phillips,  D.  J.  This  is  an  action  for  personal  injury.  At  the 
conclusion  of  the  plaintiff's  evidence  the  court  directed  a  verdict  for 
the  defendant  in  error.  To  reverse  this  action  the  plaintiff  has  brought 
the  case  here  on  a  writ  of  error. 

The  plaintiff  was  an  employee  of  the  defendant,  working  in  its  mine, 
in  which  there  was  more  or  less  gas  escaping.  He  had  worked  in  this 
mine  for  twelve  or  fourteen  months  prior  to  the  accident.  In  the 
month  of  August,  1903,  some  of  the  timbers  employed  in  the  mine 
took  fire,  when  the  work  therein  was  suspended  until  the  first  part 
of  September.  The  plaintiff  returned  to  work  about  three  days  prior 
to  the  injury  in  question.  He  was  engaged,  in  connection  with  one 
Crozier,  a  fellow  servant,  in  hauling  ore  out  of  the  mine  with  a  tramway 
car  drawn  by  a  horse.  On  the  afternoon  of  September  8,  1903,  the 
gas  in  the  level  where  the  plaintiff  was  at  work  manifested  itself  in 
sufficient  quantity  to  make  it  uncomfortable  to  the  plaintiff  and  his 
fellow  workman.  They  came  out  of  the  mine  two  or  three  times,  and 
remained  in  the  fresh  air  for  half  an  hour  or  more  at  a  time  to  get 
rid  of  the  effects  of  the  gas.  The  last  time  was  just  before  supper,  when 
the  plaintiff  complained  of  a  headache  produced  by  the  gas.  His  testi- 
mony is  that: 

"  We  did  pretty  well  before  supper,  and  did  not  feel  the  gas  very  much. 
Of  course,  we  felt  it  a  little  bit,  and  Crozier  asked  me  how  I  felt  about 
supper  time.  I  told  him  I  was  not  feeling  very  good  —  and  said  I  would 
not  like  to  go  in  there  again  right  away.    He  said:  'Wait  a  little  while, 

'  The  remainder  of  the  opinion  discusses  other  points. 

See  also  Colorado  M.  &  I.  Co.  v.  Rces,  21  Colo.  435,  42  Pac.  42,  Claypool  v.  Wig- 
more,  34  Ind.  App.  .35,  71  N.  E.  509.  —  Ed. 


SECT,  v.]  TEIS    V.    SMUGGLER   MINING   CO.  397 

and  you'll  feel  all  right.'  Pretty  soon  he  came  along  with  the  horse 
and  train,  so  I  thought  I  would  not  let  him  go  in  alone,  and  I  jumped 
on  too,  of  course.  When  we  got  in,  we  found  that  the  chutes  were  tied 
up,  and  Crozier  told  me  to  go  up  to  the  40  foot,  the  gas  was  not  so  bad, 
and  he  said  he  would  load  the  car,  and  I  said  '  All  right,'  and  started  out, 
and  that  is  all  I  know  about  it.    I  must  have  dropped  right  there." 

He  further  testified  that  just  after  supper,  when  they  started  into  the 
mine,  Crozier  took  a  piece  of  waste  and  tied  it  around  his  nose.  He 
further  testified  to  having  had  a  conversation  with  Mr.  Carey,  the  mine 
superintendent,  before  he  went  into  the  mine  the  last  time;  that 
Mr.  Carey  asked  him  how  he  felt  and  he  told  him  he  had  a  headache, 
and  Carey  told  him  he  would  get  over  that,  that  it  would  not  hurt  him; 
that  he  need  not  be  afraid,  there  was  no  danger  about  the  gas.  As 
the  plaintiff  and  Crozier  did  not  return  to  the  surface  as  soon  as  ex- 
pected by  the  men  at  the  top,  which  was  an  hour  or  more  after  they 
had  returned  to  work,  a  searching  party  went  after  them.  The  plaintiff 
was  found  about  a  hundred  or  more  feet  from  the  elevator  shaft, 
to  one  side  of  the  tramway  track,  prostrate  on  the  ground,  with  his 
face  downward,  and  in  a  comparatively  unconscious  condition.  Cro- 
zier was  found  lying  on  top  of  him  dead.  There  were  two  methods  of 
egress  from  where  they  were  found :  One  was  out  by  the  tunnel  through 
which  the  tramway  ran,  some  500  or  600  feet.  The  other  was  by 
the  elevator  cage.  The  rescuers  carried  the  plaintiff  to  the  latter, 
which  was  a  square  cage  about  53^  feet  wide  between  the  sides, 
two  of  which  were  closed  and  the  other  two  were  open.  The  shaft, 
of  course,  was  larger,  with  timbers  eight  feet  by  eight  inches. 
There  was  no  light  in  the  elevator,  except,  perhaps,  the  customary 
lamps  on  the  men's  hats  or  caps.  The  rescuers  laid  the  plaintiff 
on  the  floor  of  the  elevator;  and  their  testimony  is  that  in  their 
ascent  the  plaintiff  did  not  move.  When  they  reached  the  surface, 
upon  examination,  it  was  discovered  that  one  of  the  plaintiff's  legs 
at  the  ankle  was  broken,  and  the  injury  was  more  or  less  serious. 
His  testimony  was  that  in  going  up  the  elevator,  in  a  dazed  kind  of  way, 
his  eyes  opened,  when  he  felt  the  shock,  and  he  seemed  to  fall  asleep 
again,  that  he  recollected  that  much  of  it,  and  it  was  all  he  knew  about 
it. 

The  petition  counts  alone  upon  this  injury  to  the  leg  as  the  basis  of 
damages.^   .    .    . 

The  important  question  therefore  is :  Was  the  injury  to  the  plaintiff's 
leg  the  proximate  cause  of  the  imputed  negligence  of  the  defendant 
company  in  exposing  the  plaintiff,  according  to  his  contention,  to  the 
gas  in  the  mine? 

Without  undertaking  to  review  the  mass  of  authorities  bearing  on 
this  vexed  question,  it  is  sufficient  to  say  that  they  range  themselves 

^  Part  of  the  opinioa  is  omitted.  —  Ed. 


398  TEIS   V.    SMUGGLER   MINING   CO.  [CHAP.  III. 

along  two  lines,  closely  allied,  but  more  or  less  divergent.  The  one 
asserts  that,  when  several  concurring  acts  or  conditions  of  things  — 
one  of  them  the  wrongful  act  of  the  defendant  —  produce  the  injury, 
and  it  would  not  have  been  produced  but  for  such  wrongful  act  or 
omission,  it  is  the  proximate  cause  of  the  injury.  From  this  postulate 
the  plaintifl's  counsel  argues  that  but  for  the  gas  in  the  mine  the  plain- 
tiff would  not  have  been  rendered  helpless,  so  as  to  have  been  exposed 
to  the  supervening  negligent  act  of  the  men  in  so  placing  him  in  the 
elevator  cage  as  to  leave  his  leg  extending  beyond  the  outside  thereof, 
whereby  it  came  in  contact  with  the  timbers;  and  therefore  the  negli- 
gent act  of  exposing  him  to  the  gas  was  a  continuing,  unbroken  cause. 
This,  it  seems  to  us,  is  the  argument  post  hoc  propter  hoc.  It  runs  back 
to  the  first  wrongdoer,  no  matter  how  many  supervening  or  intervening 
causes.  It  admits  of  no  break  in  the  chain  of  causation,  because  it  is 
builded  on  the  presumption  that  but  for  the  first  negligent  act  the 
person  injured  might  not  have  come  into  the  position  where  the  sup- 
ervenient cause,  although  put  in  motion  by  a  force  entirely  inde- 
pendent of  the  first,  smote  the  party  to  his  injury.  Carried  to  its 
logical  sequence,  where  A.  should  wrongfully  eject  B.  from  his  house 
at  a  time  when  the  sky  was  clear,  if  a  storm  should  suddenly  arise  and 
a  flash  of  lightning  should  kill  B.,  his  death  would  be  the  proximate 
cause  of  the  act  of  ejection.  Opposed  to  this  doctrine  is  the  line  of 
authorities  asserting  the  rule  to  be  that,  where  the  negligent  act  of 
the  defendant  is  not  wanton,  the  law  attaches  responsibility  to  it  for 
all  the  consequences  which  ensue  directly  therefrom,  and  for  such 
effect  as,  in  the  natural  order  of  sequence,  follows  therefrom,  no  matter 
how  remote  in  point  of  time  or  distance,  limited  by  the  requirement  that 
the  ultimate  result  must  be  such  as  that  a  reasonable  person  should 
anticipate  that  in  the  natural  order  of  things  would  probably  ensue. 
Whenever  this  causal  connection  between  the  negligent  act  and  the 
ultimate  injury  is  interrupted  by  reason  of  the  interposition  of  some 
independent  force  or  human  agency,  acting  independently  of  the  first 
negligent  act,  but  for  which  the  ultimate  injury  would  not  have  come, 
the  former  is  the  remote  and  the  latter  is  the  proximate  cause.  This 
is  very  aptly  expressed  by  Wharton  thus: 

"The  intervener  acts  as  a  nonconductor  and  insulates  the  negli- 
gence."^ 

Turning  to  the  case  in  hand,  it  may  be  conceded  that  the  mineowner 
might  be  held  to  have  reasonably  anticipated  that,  permitting  gas  to 
flow  in  the  mine,  a  workman  exposed  thereto  might  be  overcome  and 
rendered  unconscious.  It  may  also  be  conceded  that  it  would  not  be 
an  unnatural  course  to  pursue  by  the  men,  on  discovering  the  plaintiff 
prostrate  in  the  mine,  to  carry  him  to  the  elevator  as  the  shortest  and 
quickest  method  of  taking  him  to  the  surface  for  restoration.    It  may 

'  The  court  here  considered  manv  authorities.  —  Ed. 


II 


SECT,  v.]  TEIS    V.    SMUGGLEK   MINING   GO.  399 

further  be  conceded,  for  the  purposes  of  this  case,  that,  with  the  knowl- 
edge the  defendant  had  of  the  construction  of  the  elevator  and  its 
mode  of  operation,  a  disabled  man  would,  in  the  passage  to  the  sur- 
face, be  exposed  to  the  usual  and  ordinary  incidents  of  such  mode  of 
carriage.  Beyond  question,  the  defendant  could  be  held  liable  for  any 
injury  to  the  lungs  and  the  general  health  of  the  plaintiff  traceable 
directly  to  his  exposure  to  the  gas.  But  here  its  responsibility  would 
end.  The  elevator  from  side  to  side  was  about  53^2  feet,  nearly  the 
length  of  an  ordinary  man.  As  it  was  square,  there  was  ample  room 
between  the  transverse  corners  in  which  the  plaintiff  could  have  been 
laid  without  his  leg  extending  over  the  side  of  the  elevator.  And 
had  he  been,  with  ordinary  care,  laid  crosswise  at  full  length,  his  feet 
would  not  have  extended  outside  of  the  elevator  over  two  or  three 
inches.  In  the  absence  of  any  knowledge,  so  far  as  this  record  discloses, 
on  the  part  of  the  defendant  that  any  person  carried  up  the  elevator 
had  ever  had  his  feet  or  legs  injured  by  coming  in  contact  with  the  wall 
of  the  shaft,  would  it  be  within  the  range  of  reasonable  probability 
that  the  company  should  be  held  to  have  reasonably  anticipated  that 
the  rescuers  would  so  carelessly  dump  the  plaintiff  in  the  car  as  to 
leave  his  leg  unnecessarily  protruding  beyond  the  elevator,  and  thereby 
be  broken  by  coming  in  contact  with  the  wall  of  the  shaft? 

It  cannot  be  said  that,  if  the  plaintiff  had  not  been  rescued  at  the 
time  he  was,  he  would  have  died.  The  fact  that  Crozier,  who  lay 
above  him,  was  dead,  and  that  the  plaintiff,  whose  face  was  to  the 
ground,  was  still  living,  would  indicate  that  the  gas  was  not  so  delete- 
rious next  to  the  earth.  And  that  the  gas  had  measurably  spent  its 
destructive  force  at  the  time  the  plaintiff  was  discovered  is  cA-idenced 
by  the  fact  that  the  rescuing  party  carried  him  out  without  inconven- 
ience to  themselves  on  account  of  the  presence  of  gas,  and  that  they 
returned  thereafter  and  brought  up  the  body  of  Crozier.  The  horse 
was  also  discovered  near  by  and  was  led  out  the  length  of  the  tunnel 
by  one  of  the  employees,  without  injurious  result.  Suppose  that  the 
rescuing  party  had  thought  it  the  better  course  to  have  carried  the 
plaintiff  out  to  the  open  through  the  tunnel,  and  to  that  end  had  placed 
him  on  the  ore  car;  but  in  their  haste  they  left  his  leg  hanging  over  the 
edge  of  the  car,  and  the  horse  drawing  the  car  towards  the  mouth 
of  the  tunnel  had  become  frightened,  or  from  viciousness,  had  kicked 
the  plaintiff  and  broken  his  leg,  would  that  have  been  a  probable  re- 
sult that  the  defendant  should  be  held  to  have  reasonably  anticipated 
from  the  plaintiff's  exposure  to  gas  in  the  mine?  This  very  situation 
is  aptly  illustrated  by  the  case  of  Roedecker  v.  Metropolitan  Street 
Railway  Company,  87  App.  Div.  227,  84  N.  Y.  Supp.  300,  where  the 
plaintiff,  under  the  direction  of  the  conductor,  rode  on  the  front  plat- 
form of  a  horse  car.  Through  the  negligence  of  the  company  respect- 
ing the  track  the  horse  fell,  which  stopped  the  car.  The  car  was  moved 
backward  so  that  the  horse  could  be  released,  and,  when  released,  it 


400  TEIS   V.    SMUGGLER    MINING   CO.  [CHAP.  III. 

kicked  the  plaintiff,  who  was  standing  on  the  platform.  It  was  held 
that  the  driver's  negligence  ended  with  the  fall  of  the  horse,  and 
therefore  the  injury  was  not  the  proximate  cause  of  the  negligent  act. 
After  adverting  to  the  lack  of  harmony  in  the  decisions,  the  court  said: 

"The  principle  to  be  evolved  from  their  consideration  is  that,  al- 
though a  situation  may  be  produced  by  negligence,  it  is  only  for  injuries 
which  probably,  naturally,  or  necessarily  flow  from  such  negligence, 
without  the  intervention  of  another  and  a  distinct  cause  or  agency,  that 
the  author  of  the  negligence  can  be  held  liable;  and  this  would  exclude 
injuries  resulting  from  another,  subsequent,  different,  and  inde- 
pendent cause.  .  .  .  ^Ye  must  be  careful  to  avoid  confusing  two  things 
which  are  separate  and  distinct,  namely,  that  which  causes  the  injury 
and  that  without  which  the  injury  could  not  have  happened.  .  .  . 
If,  after  the  cause  in  question  has  been  in  operation,  some  independent 
force  comes  in  and  produces  an  injury,  not  its  natural  or  probable 
effect,  the  author  of  the  cause  is  not  responsible." 

\Mien  the  plaintiff  was  carried  to  the  surface  of  the  mine,  and  the 
doctor  had  placed  him  on  the  table  for  examination,  had  some  third 
party  carelessly  struck  a  leg  of  the  table  and  overturned  it,  whereby  the 
plaintiff's  leg  would  have  been  broken,  could  it  be  said  that  that  was 
the  natural  or  probable  result  of  the  presence  of  gas  in  the  mine,  which 
the  defendant  should  be  held  to  have  anticipated?  The  breaking  of  the 
plaintiff's  leg  was  such  an  abnormal,  extraordinary  incident,  through 
the  carelessness  of  the  men  who  carried  him  up  the  elevator,  as  to  ex- 
clude it  from  the  range  of  reasonable  probability  as  the  result  of  the 
gas  in  the  mine.  It  was  a  result  that  might  not  have  happened  in  a 
thousand  repetitions  of  the  act  of  carr^dng  him  up  the  elevator.  As 
well  say,  if  his  rescuers  had  ^.bstracted  his  pocketbook  or  his  watch, 
while  he  was  comparatively  unconscious  and  helpless,  the  defendant 
company  should  be  held  liable  because  he  was  rendered  helpless  by  the 
gas,  and  that  that  was  the  first  and  continuing  unbroken  cause.  The 
law  is  that  in  all  the  relations  and  transactions  of  business  Hfe  we  have 
a  right  to  assume  that  others  will  perform  their  duty  and  discharge 
their  undertakings  in  a  reasonable,  prudent,  and  careful  manner. 
We  are  not  held  to  assume  that  injury  will  come  as  the  result  of  the 
carelessness  or  incautiousness  of  others. 

The  final  contention  on  behalf  of  plaintiff  in  error  is  that  the  ques- 
tion of  proximate  and  remote  cause  should  have  been  submitted  to  the 
determination  of  the  jury.  Where  the  facts  of  the  particular  case  are 
disputable,  and  are  of  such  character  that  different  minds  might  rea- 
sonably draw  different  conclusions  therefrom,  it  presents  a  question 
of  fact  properly  determinable  by  the  jury;  but  where,  as  in  this  case, 
there  is  no  dispute  about  the  facts,  and  the  law  pronounces  the  judg- 
ment on  the  facts  established,  it  is  the  pro^-ince  and  duty  of  the  court 
to  direct  the  verdict.    This  has  been  so  ruled  in  respect  of  this  character 


SECT    v.]  BURROWS   V.    MARCH   GAS   CO.  401 

of  action.  Hoag  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  supra;  S.  S.  Pass.  Ry. 
Co.  V.  Trich,  supra;  Goodlander  Mill  Company  v.  Standard  Oil  Com- 
pany, 63  Fed.  400,  407,  11  C.  C.  A.  253,  27  L.  R.  A.  583;  Cole  v.  German 
Savings  &  L.  Association,  supra. 

The  circuit  court  did  not  err  in  directing  a  verdict  for  the  defendant, 
and  its  judgment  is  affirmed. 


BURROWS  V.  MARCH  GAS  CO. 
Court  of  Exchequer,  1870. 

[Reported  L.  R.  5  Ex.  67.] 

Kelly,  C.  B.  I  am  of  opinion  that  this  rule  ought  to  be  discharged. 
The  action  has  been  said  to  be  one  of  contract,  but  in  point  of  fact  the 
statement  of  the  contract  in  the  declaration  seems  to  me  to  be  made 
by  way  of  inducement  only,  and  the  substantial  complaint  is  rather  of 
a  tort  than  of  a  breach  of  contract.  The  contract  was  that  the  defend- 
ants should  supply  the  plaintiff  with  a  gas  pipe  from  the  main  to  a 
meter  under  the  plaintiff's  staircase,  and  the  mischief  for  which  damages 
are  sought  to  be  recovered  arose  thus : —  The  pipe  having  been  laid 
down  required  testing,  and  in  order  to  test  it,  gas  was  laid  on  and  the 
pipe  was  filled.  This  was  done  without  any  notice  to  Bates,  the  gas- 
fitter.  The  defendants  sent  no  one  to  test  the  pipe,  but  on  the  night  of 
the  accident,  one  Sharratt,  the  servant  of  Bates,  was  told  there  was  an 
escape  of  gas.  On  hearing  this,  he  went,  not  for  the  purpose  of  test- 
ing the  defendants'  pipe  but  of  examining  Bates's  work,  and  of  attempt- 
ing to  discover  the  cause  of  the  escape,  into  the  plaintiff's  shop  with  a 
lighted  candle,  and  an  explosion  ensued,  doing  the  damage  for  which 
the  plaintiff  now  seeks  to  render  the  defendants  liable.  Now,  it  is 
clear  that  the  injury  was  not  caused  entirely  by  the  mere  act  of  the 
defendants  in  furnishing  an  insufficient  pipe.  But  the  gas  ha\'ing  es- 
caped by  reason  of  that  insufficiency,  was  exploded  in  consequence 
of  the  lighted  candle  being  brought  in  contact  with  it,  and  thus  from 
the  two  causes  conjointly,  the  defect  in  the  defendants'  pipe  and  the 
imprudence  of  Sharratt,  in  introducing  a  lighted  candle  into  the  shop, 
the  accident  happened.  Under  these  circumstances,  if  Sharratt  had 
been  a  servant  of  the  plaintiff  there  would  have  been  contributory 
negligence.  Here,  however,  he  was  the  servant  of  Bates,  the  gasfitter, 
and  unless  Bates  is,  for  this  purpose,  identical  with  the  plaintiff",  this 
is  not  a  case  in  which  the  plaintiff  contributed  to  the  accident,  for  the 
owner  of  premises  cannot  be  held  liable  for  the  negligence  of  inde- 
pendent tradesmen.  Neither  can  he  be  disentitled  to  recover  because 
their  joint  negligence  concurs  to  cause  an  injury;  otherwise,  if  a  num- 
ber of  independent  tradesmen  were  employed  on  his  premises  in  various 


402  QUAKER   OATS   CO.  V.    GRICE.  [CHAP.  111. 

capacities,  and  for  different  purposes,  the  result  might  be  that  he  would 
find  himself  without  a  remedy  against  any  for  an  injury  arising  from 
separate  acts  of  negligence  by  each.  Suppose,  for  instance,  carpenters 
and  bricklayers  happened  to  be  employed  at  the  same  time,  as  in  this 
case,  Bates  the  gasfitter,  and  the  defendants  the  gas  suppliers,  were  em- 
ployed, and  damage  arose  from  the  negligence  of  both.  The  carpen- 
ters might  shift  the  responsibility  on  to  the  bricklayers,  or  the  brick- 
layers on  to  the  carpenters,  and  thus  the  person  damnified  might  be 
left  without  a  remedy.  But  such  is  not  the  law.  If  a  man  sustain  an 
injury  from  the  separate  negligence  of  two  persons  employed  on  his 
premises  to  do  two  separate  things,  as  in  this  case  the  plaintiff  has  sus- 
tained an  injury  from  the  negligence  of  the  gasfitter's  servant  on  the 
one  hand  and  of  the  gas  company  on  the  other,  he  can,  in  my  opinion, 
maintain  an  action  against  both  or  either  of  the  wTongdoers.  Here  he 
has  thought  fit  to  sue  the  company,  and  on  the  facts  proved,  their  neg- 
ligence is  complete.  They  laid  down  an  unfit  and  improper  pipe; 
they  turned  on  the  gas  without  notice  to  the  gasfitter  of  their  intention ; 
they  took  no  precaution  by  proper  testing  or  otherwise  to  prevent  the 
gas  escaping,  Sharratt  did  not  go  to  test  their  work,  but  that  of  Bates. 
He  was  an  entire  stranger  to  the  defendants,  as  he  was  to  the  plaintiff 
also.  The  negligence  on  their  part,  therefore,  seems  to  me  complete. 
The  jury  found  that  the  escape  of  gas  came  from  a  defect  in  the  pipe  sup- 
plied by  the  defendants,  and  that  that  defect  was  there  when  the  pipe 
was  supplied.  They  further  found,  though  not  directly  in  answer  to 
any  question  put  to  them,  that  the  defendants  ought  to  have  caused 
the  pipe  to  be  tested  by  some  competent  person.  The  negligence  on 
their  part,  accordingly,  is  clearly  established,  and  the  concurrent  act 
of  negligence  on  the  part  of  Sharratt,  who  was  a  stranger  alike  to  the 
plaintiff  and  the  defendants,  cannot  exonerate  them.  I  think,  there- 
fore, that  the  verdict  found  xt  the  trial  was  right,  and  ought  to  be  sus- 
tained.^ 


QUAKER  OATS  CO.   v.   GRICE. 

Circuit  Court  of  x\ppeals,   1912. 

[Reported  19.5  Fed.  441.] 

The  action  was  brought  to  recover  damages  occasioned  by  the  de- 
struction by  fire  of  the  dwelling  house  and  buildings  occupied  by  plain- 
tiff and  their  contents,  alleged  to  be  caused  by  the  negligence  of  defend- 
ant. Defendant  for  several  years  before  the  fire  had  been  operating 
a  plant  at  Richford,  Vt.,  consisting  of  a  grinding  mill  and  elevator  build- 

»  See  also  Merrill  v.  Los  Angeles  G.  &  E.  Co.,  158  Cal.  499,  111  Pac.  534;  Logansport 
&  W.  V.  G.  Co.  r.  Coate,  29  Ind.  App.  299,  64  N.  E.  638;  Koelsch  v.  Philadelphia 
Co.,  152  Pa.  3.55,  25  Atl.  522.  —  Ed. 


11 


SECT,  v.]  QUAKER   OATS    CO.  V.    GRICE.  403 

ing,  with  other  structures  connected  therewith.  This  plant  was  used 
by  defendant  for  the  manufacture  of  mixed  feed.  This  manufacture 
involved  the  elevation  and  storage  of  whole  grain,  the  grinding  of  grain, 
the  elevation,  storage,  and  mixing  of  certain  finely  ground  products 
manufactured  elsewhere  and  shipped  to  this  plant  in  bulk  or  in  bags. 
As  a  result  of  these  operations,  large  quantities  of  dust  accumulated 
in  the  main  building,  on  the  floor,  the  beams  and  other  exposed  sur- 
faces above  the  floor,  and  when  the  machinery  was  running  the  \abra- 
tion  of  the  building  would  cause  the  dust  to  rise  or  to  sift  off  into 
the  atmosphere,  which  became  so  dense  that  there  "was  trouble  in 
looking  through  it."  This  dust  was  well  known  to  be  a  combustible 
substance,  which,  when  diffused  and  mLxed  with  air,  would  upon  the 
application  of  a  flame  or  spark,  ignite  and  explode. 

On  the  afternoon  of  October  7,  1908,  a  \'iolent  explosion  occurred  in 
the  main  building,  which  was  followed  by  a  fire  which  entirely  consumed 
that  building,  and  which  was  communicated  to  the  adjoining  buildings 
of  plaintiff.  Several  lives  were  lost  as  a  consequence  of  the  explosion, 
and  no  living  witness  testified  as  to  seeing  a  flame  or  a  spark  in  the 
building  just  prior  to  th^e  explosion;  but  the  testimony  warrants  the 
conclusion,  and  apparently  no  one  disputes  it,  that  the  explosion  was 
caused  by  the  conjunction  of  the  inflammable  dust  and  some  spark  or 
flame. 

Before  Lacombe,  Ward,  and  Notes,  Circuit  Judges. 

Per  Curiam.  Although  the  declaration  avers  two  grounds  of 
negligence  —  accumulation  of  inflammable  dust  and  spontaneous 
combustion  of  some  ground  grain  (shives)  which  had  been  allowed 
to  remain  undisturbed  in  a  bin  —  the  main  thing  relied  on  by  the 
plaintiff  was  the  dust.  This  is  manifest  from  his  counsel's  opening 
address  (which  has  been  printed  in  the  record)  and  from  the  testimony. 
If  the  jury  were  satisfied  that  the  cause  of  the  explosion  was  the  pres- 
ence of  this  dust,  and  that  reasonable  care  had  not  been  taken  to 
remove  so  much  of  it  as  to  render  the  premises  safe,  they  were  warranted 
in  finding  defendant  negligent,  even  though  they  were  not  satisfied 
that  the  flame  was  produced  by  spontaneous  combustion.  If  premises 
are  allowed  to  become  unsafe  because  they  are  filled  with  dust  which 
would  explode  on  the  application  of  spark  or  flame,  and  the  exercise  of 
reasonable  care  would  have  prevented  the  premises  from  becoming 
thus  unsafe,  the  person  whose  neglect  brought  about  such  a  dangerous 
condition  would  not  be  excused  because  the  actual  spark  which  fired 
the  train  was  produced  by  some  intruder  undertaking  to  light  his  pipe.^ 

^  The  remainder  of  the  opinion  is  omitted.  —  Ed. 


404     WATSON  V.  KENTUCKY  &  INDIANA  BRIDGE  &  K.  E.  CO.    [CHAP.  III. 


v.. 


■■^\ 


V 


WATSON    V.    KENTUCKY    &    INDIANA    BRIDGE 
&   RAILROAD    CO. 

Court  of  Appeals  of  Kentucky,  1910. 

[Reported  137  A'?/.  619.] 

Seattle,  J.     This  action  was  instituted  by  the  appellant,  John  Wat- 
son, in  the  court  below,  against  the  appellees,  Kentucky  &  Indiana 
Bridge    &    Railroad    Company,    hereinafter    called    the    Bridge    & 
Railroad  Company,  the  Southern  Railway  Company,  the  Southern 
Railway  Company  in  Kentucky,  and  the  Union  Tank  Line  Com- 
pany, to  recover  $20,000  damages  for  injuries  sustained  to  his  person 
on  the  night  of  June  14,  1907,  from  an  explosion  of  gas  caused,  as 
alleged,  by  the  negligence  of  the  appellees.    It  was,  in  substance,  al- 
leged in  the  petition  as  amended  that  while  a  tank  car,  owned  by  the 
appellee  Union  Tank  Line  Company,  and  filled  mth  a  highly  explosive 
substance  known  as  gasoline,  was  being  transported  through  a  pop- 
ulous section  of  the  city  of  Louisville  over  the  roadbed  of  the  appellee 
Bridge  &  Railroad  Company,  it  was  derailed  and  its  valve  broken, 
thereby  causing  all  the  gasoline  to  escape  and  flow  in  large  quantities 
on  the  street  and  into  the  gutters;  that  from  the  gasoline  thus  flowing 
and  standing  in  pools  upon  the  street  and  gutters  there  arose  and  spread 
over  the  neighborhood  of  the  place  of  derailment  and  into  the  houses 
of  the  residents  thereof,  great  quantities  of  highly  explosive  and  com- 
bustible gas  which,  three  hours  after  the  derailment  of  the  tank  car, 
exploded  with  force  from  contact  with  a  lighted  match  thrown  on  the 
street  by  one  Chas.  Duerr,  who  claimed  to  have  used  it  in  igniting  a 
cigar;  that  the  explosion  threw  appellant  from  his  bed  and  almost  de- 
molished his  house,  from  the  ruins  of  which  he  was  taken  unconscious 
and  bleeding  with  a  fractured  jaw  and  one  cheek  nearly  torn  from  his 
face.  It  was  further  charged  in  the  petition  that  the  explosion  and  appel- 
lant's consequent  injuries  resulted  from  the  negligence  of  all  the  appel- 
lees ;  the  negligence  of  the  Union  Tank  Line  Company  lying,  as  alleged, 
in  its  failure  to  provide  the  tank  car  with  proper  trucks  and  main 
valve;  that  of  the  Bridge  &  Railroad  Company  in  failing  to  maintain  in 
a  safe  condition  the  roadbed  and  track  at  the  point  of  derailment;  in 
permitting  the  tank  car  to  remain  at  the  place  of  derailment  in  its 
wrecked  condition  an  unreasonable  time,  and  in  allowing  ignorant 
and  careless  meddling  on  the  part  of  their  servants  with  the  main  valve 
of  the  tank  after  it  was  broken,  whereby  the  flow  of  the  gasoline  from 
the  tank  was  increased  instead  of  diminished.^  .  .  . 

The  lighting  of  the  match  by  Duerr  ha\'ing  resulted  in  the  ex-plo- 
sion, the  question  is,  was  that  act  merely  a  contributing  cause,  or 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT,  v.]      WATSON  V.  KENTUCKY  &  INDIANA  BRIDGE  &  R.  R.  CO.      405 

the  efficient  and,  therefore,  proximate  cause  of  appellant's  injuries? 
The  question  of  proximate  cause  is  a  question  for  the  jury.  In  holding 
that  Duerr  in  lighting  or  throwing  the  match  acted  maliciously  or 
with  intent  to  cause  the  explosion,  the  trial  court  invaded  the  province 
of  the  jury.  There  was,  it  is  true,  evidence  tending  to  prove  that  the 
act  was  wanton  or  malicious,  but  also  evidence  conducing  to  prove 
that  it  was  inadvertently  or  negligently  done  by  Duerr.  It  was  there- 
fore for  the  jury  and  not  the  court  to  determine  from  all  the  e\'idence 
whether  the  lighting  of  the  match  was  done  by  Duerr  inadvertently 
or  negligently,  or  whether  it  was  a  wanton  and  malicious  act.  As  said 
in  Milwaukee  Railroad  Co.  v.  Kellogg,  94  U.  S.  469,  24  L.  ed.  256: 
"The  true  rule  is  that  what  is  the  proximate  cause  of  the  injury  is 
ordinarily  a  question  for  the  jury.  It  is  not  a  question  of  science 
or  legal  knowledge.  It  is  to  be  determined  as  a  fact  in  \'iew  of 
the  circumstances  of  fact  attending  it."  Snydor  v.  Arnold,  122 
Ky.  557,  92  S.  W.  289,  28  Ky.  Law  Rep.  1252.  In  Thompson  on 
Negligence,  §  161,  it  is  said:  "On  principle,  the  rule  must  be 
here,  as  in  other  cases,  that,  before  the  judge  can  take  the  question 
away  from  the  jury  and  determine  it  liimself,  the  facts  must  not  only 
be  undisputed,  but  the  inference  to  be  drawn  from  those  facts  must  be 
such  that  fair-minded  men  ought  not  to  differ  about  them.  It  must  be 
concluded  that  this  is  so,  when  it  is  considered  that  proximate  cause 
is  a  cause  which  would  probably,  according  to  the  experience  of  man- 
kind, lead  to  the  event  which  happened,  and  that  remote  cause  is  a 
cause  which  would  not,  according  to  such  experience,  lead  to  such  an 
event.  Now,  whether  a  given  cause  will  probably  lead  to  a  given  re- 
sult is  plainly  to  be  determined  by  the  average  experience  of  man- 
kind; that  is,  by  a  jury  rather  than  by  a  legal  scholar  on  the  bench." 
No  better  statement  of  the  law  of  proximate  cause  can  be  given  than 
is  found  in  21  Am.  &  Eng.  Ency.  of  Law  (2d  ed.)  490,  quoted  with 
approval  in  Louisville  Home  Telephone  Company  v.  Gasper,  123  Ky. 
128,  93  S.  W.  1057,  29  Ky.  Law  Rep.  578,  9  L.  R.  A.  (N.  S.)  548: 
"  It  is  well  settled  that  the  mere  fact  that  there  have  been  intervening 
causes  between  the  defendant's  negligence  and  the  plaintiff's  injuries 
is  not  sufficient  in  law  to  relieve  the  former  from  liability;  that  is  to 
say,  the  plaintiff's  injuries  may  yet  be  natural  and  proximate  in  law, 
although  between  the  defendant's  negligence  and  the  injuries  other 
causes  or  conditions,  or  agencies,  may  have  operated,  and,  when  this 
is  the  case,  the  defendant  is  liable.  So  the  defendant  is  clearly  respon- 
sible where  the  intervening  causes,  acts,  or  conditions  were  set  in  motion 
by  liis  earlier  negligence,  or  naturally  induced  by  such  wrongful  act 
or  omission,  or  even,  it  is  generally  held,  if  the  intervening  acts  or 
conditions  were  of  a  nature  the  happening  of  which  was  reasonably  to 
have  been  anticipated,  though  they  may  have  been  acts  of  the  plaintiff 
himself.  An  act  or  omission  may  yet  be  negligent  and  of  a  nature  to 
charge  a  defendant  with  liability,  although  no  injuries  would  have 


40G    WATSON  V.  KENTUCKY  &  INDIANA  BRIDGE  &  R.  R,  CO.    [CHAP.  III. 

been  sustained  but  for  some  intervening  cause,  if  the  occurrence  of  the 
latter  might  have  been  anticipated.  ...  A  proximate  cause  is  that 
cause  which  naturally  led  to  and  which  might  have  Vjeen  expected  to 
produce  the  result.  .  .  .  The  connection  of  cause  and  effect  must  be 
established.  It  is  also  a  principle  well  settled  that  when  an  injury  is 
caused  by  two  causes  concurring  to  produce  the  result,  for  one  of 
which  the  defendant  is  responsible,  and  not  for  the  other,  the  defendant 
cannot  escape  responsibility.  One  is  liable  for  an  injury  caused  by  the 
concurring  negligence  of  himself  and  another  to  the  same  extent  as 
for  one  caused  entirely  by  his  own  negligence."  Black's  Law  &  Prac- 
tice, §21;  Thompson  on  Negligence,  §§47-52;  Whitaker's  Smith  on 
Negligence,  27;  29  Cyc.  488-502. 

If  the  presence  on  Madison  Street  in  the  city  of  Louis\alle  of  the 
great  volume  of  loose  gas  that  arose  from  the  escaping  gasoline  was 
caused  by  the  negligence  of  the  appellee  Bridge  &  Railroad  Company,  it 
seems  to  us  that  the  probable  consequences  of  its  coming  in  contact 
with  fire  and  causing  an  explosion  was  too  plain  a  proposition  to  admit 
of  doubt.  Indeed,  it  was  most  probable  that  some  one  would  strike 
a  match  to  light  a  cigar  or  for  other  purposes  in  the  midst  of  the  gas. 
In  our  opinion,  therefore,  the  act  of  one  lighting  and  throwing  a  match 

/  under  such  circumstances  cannot  be  said  to  be  the  efficient  cause  of 
the  explosion.  It  did  not  of  itself  produce  the  explosion,  nor  could  it 
have  done  so  without  the  assistance  and  contribution  resulting  from  the 

"^  primary  negligence,  if  there  was  such  negligence,  on  the  part  of  the 
appellee  Bridge  &  Railroad  Company  in  furnishing  the  presence  of  the 
gas  in  the  street.  This  conclusion,  however,  rests  upon  the  theory 
that  Duerr  inadvertently  or  negligently  lighted  and  threw  the  match  in 
the  gas.  This  view  of  the  case  is  sustained  by  the  following  leading 
cases,  all  decided  by  this  court:  Snydor  v.  Arnold,  122  Ky.  557,  92 
S.  W.  289,  28  Ky.  Law  Rep.  1252;  Louis\dlle  Gas  Co.  v.  Gutenkuntz, 
82  Ky.  432;  Whitman-McNamara  Tobacco  Co.  v.  Warren,  66  S.  W. 
609,  23  Ky.  Law  Rep.  2120;  Louisville  Home  Telephone  Co.  v.  Gasper, 
123  Ky.  128,  93  S.  W.  1057,  29  Ky.  Law  Rep.  578,  9  L.  R.  A.  (N.  S.) 
548.  The  cases  supra  are,  indeed,  in  point  of  fact  and  principle  so 
analogous  to  the  case  under  consideration  as  to  completely  control 
its  determination,  and  to  render  further  discussion  of  it  unnecessary. 
If,  however,  the  act  of  Duerr  in  lighting  the  match  and  throwing 
it  into  the  vapor  or  gas  arising  from  the  gasoline  was  malicious,  and 
done  for  the  purpo.se  of  causing  the  explosion,  we  do  not  think  appellees 
would  be  responsible,  for  while  the  appellee  Bridge  &  Railroad  Com- 
pany's negligence  may  have  been  the  efficient  cause  of  the  presence  of 
the  gas  in  the  street,  and  it  should  have  understood  enough  of  the 
consequences  thereof  to  have  foreseen  that  an  explosion  was  likely 
to  result  from  the  inadvertent  or  negligent  lighting  of  a  match  by  some 
person  who  was  ignorant  of  the  presence  of  the  gas  or  of  the  effect  of 
lighting  or  throwing  a  match  in  it, it  could  not  have  foreseen  or  deemed  it 


II 


SECT,  v.]  STONE    V.    BOSTON    &   ALBANY    RAILROAD    CO.  407 

probable  that  one  would  maliciously  or  wantonly  do  such  an  act  for  the 
evil  purpose  of  producing  the  explosion.  Therefore,  if  the  act  of  Duerr 
was  malicious,  we  quite  agree  with  the  trial  court  that  it  was  one  which 
the  appellees  could  not  reasonably  have  anticipated  or  guarded  against, 
and  in  such  case  the  act  of  Duerr,  and  not  the  primary  negligence  of 
the  appellee  Bridge  &  Railroad  Company,  in  any  of  the  particulars 
charged,  was  the  efficient  or  proximate  cause  of  appellant's  injuries. 
The  mere  fact  that  the  concurrent  cause  or  intervening  act  was  un- 
foreseen will  not  relieve  the  defendant  guilty  of  the  primary  negligence 
from  liability,  but  if  the  intervening  agency  is  something  so  unexpected 
or  extraordinary  as  that  he  could  not  or  ought  not  to  have  anticipated 
it,  he  will  not  be  liable,  and  certainly  he  is  not  bound  to  anticipate 
the  criminal  acts  of  others  by  which  damage  is  inflicted  and  hence  is 
not  liable  therefor.  29  Cyc.  501-512;  Sofield  v.  Sommers,  9  Ben.  526, 
22  Fed.  Cas.  769,  Cas.  No.  13,  157;  Andrews  v.  Kinsel,  114  Ga.  390,  40 
S.  E.  300,  88  Am.  St.  Rep.  25. 


STONE  V.  BOSTON  &  ALBANY  RAILROAD  CO. 
SxjpREME  Judicial  Court  of  Massachusetts,  1898. 

[Reported  171  Mass.  536.] 

Allen,  J.  This  is  an  action  of  tort  to  recover  for  the  loss  of  the 
plaintiff's  buildings  and  other  property  by  fire,  under  the  following  cir- 
cumstances. The  defendant  owned  and  operated  a  branch  railroad 
extending  from  its  main  line  at  South  Spencer  to  the  \allage  of  Spencer, 
and  had  at  the  Spencer  terminus  a  passenger  station,  a  freight  house, 
and  a  freight  yard,  all  adjoining  a  public  street.  On  the  side  of  the 
freight  house,  and  extending  beyond  it  about  seventy-five  feet,  was  a 
wooden  platform  about  eight  feet  wide  and  four  feet  high,  placed  upon 
posts  set  in  the  ground,  the  under  side  being  left  open  and  exposed. 
The  main  tracks  ran  along  on  the  front  side  of  this  platform  and  freight 
house,  and  on  the  rear  of  the  platform  there  was  a  freight  track,  so 
near  as  to  be  convenient  to  load  and  unload  cars  from  and  upon  it. 
The  plaintiff  was  engaged  in  the  lumber  business,  bu;\ang  at  wholesale, 
and  selling  at  wholesale  and  retail,  manufacturing  boxes,  etc.  His  place 
of  business  comprised  several  buildings,  some  of  which  were  across 
the  street  from  the  defendant's  buildings;  and  his  principal  buildings 
were  about  seventy-five  feet  from  the  place  on  the  defendant's  premises, 
beneath  the  platform,  where  the  fire  originated.  The  evidence  tended  to 
show  that  the  platform  was  mostly  used  for  the  storing  of  oil  which  had 
been  brought  upon  the  railroad,  until  it  was  taken  away  by  the  con- 
signees; and  that  the  platform  had  become  thoroughly  saturated  with 
oil  which  had  leaked  from  the  barrels,  and  which  not  only  saturated  the 


408  STONE   V.    BOSTON    &   ALBANY   EAILEOAD    CO.       [CHAP.  III. 

platform  but  dripped  to  the  ground  beneath.  More  or  less  rubbish 
accumulated  from  time  to  time  under  the  platform,  and  was  occasion- 
ally carried  away.  The  e\ndence  tended  to  show  that  this  space  below 
had  been  cleaned  out  two  or  three  weeks  before  the  fire.  On  the  day 
of  the  fire,  September  13,  1893,  from  twenty-five  to  thirty  barrels 
of  oil  and  oil  barrels  were  upon  the  platform.  Some  were  nearly 
or  quite  empty,  some  were  partly  full,  but  most  of  them  were  probably 
full  or  nearly  full.  The  only  evidence  to  show  how  the  fire  originated 
tended  to  prove  that  one  Casserly,  a  teamster,  brought  a  load  of  boots 
to  be  shipped  upon  a  car  which  was  standing  upon  the  track  on  the 
rear  side  of  the  platform;  that  he  was  smoking  a  pipe;  that  he  stepped 
into  the  car  to  wait  for  the  defendant's  foreman  of  the  yard,  who  was 
to  help  him  unload  the  boots;  that  in  stepping  in  he  stubbed  his  toe 
and  knocked  some  of  the  ashes  and  tobacco  out  of  his  pipe;  that  he  re- 
lighted the  pipe  with  a  match,  and  threw  the  match  down;  and  that 
at  this  time  he  was  standing  in  the  door  of  the  car,  facing  the  platform. 
It  must  be  assumed,  upon  the  evidence,  that  the  fire  caught  upon  the 
ground  underneath  the  platform  from  the  match  thrown  down  by  Cas- 
serly. All  efforts  to  extinguish  the  fire  failed;  it  spread  fast  and  was 
almost  immediately  upon  the  top  of  the  platform,  running  up  a  post 
according  to  one  of  the  witnesses,  and  very  soon  it  reached  the  barrels 
of  oil,  which  began  to  explode,  and  the  fire  communicated  to  the 
plaintiff's  buildings,  and  they  were  burned.  There  was  e\'idence 
tending  to  show  that  all  of  the  oil  had  been  upon  the  platform  for  a 
longer  time  than  forty-eight  hours.  According  to  the  testimony  of 
the  plaintiff,  the  platform  was  never  to  his  knowledge  empty  of  oil 
and  oil  barrels,  it  was  completely  saturated  with  oil,  and  that  general 
condition  oi  things,  so  far  as  the  platform  was  concerned,  had  existed 
for  eight  years,  ever  since  he  himself  had  been  there.  Upon  the  evi- 
dence  introduced  by  the  plaintiff,  the  court  directed  a  verdict  for  the 
defendant. 

The  plaintiff  in  substance  contends  before  us  that  the  defendant 
was  negligent  in  storing  oil  upon  the  platform,  taking  into  consideration 
the  condition  of  the  platform  and  of  the  ground  and  material  under  it, 
and  the  length  of  time  during  which  the  oil  had  been  allowed  to  remain 
there;  that,  irrespectively  of  the  cjuestion  of  negligence,  the  platform 
with  the  oil  upon  it  constituted  a  public  nuisance,  especially  in  \dew 
of  Pub.  Sts.  c.  102,  §  74,  pro\ading  that  oil  composed  wholly  or  in  part 
of  any  of  the  products  of  petroleum  shall  not  be  allowed  to  remain  on 
the  grounds  of  a  railroad  corporation  in  a  town  for  a  longer  time  than 
forty -eight  hours,  without  a  special  permit  from  the  selectmen;  that 
the  defendant  is  responsible  for  the  damage  resulting  from  the  public 
nuisance,  whether  the  act  of  starting  the  fire  was  due  to  a  third  person 
or  not;  and  that  the  question  should  have  been  submitted  to  the  jury 
whether  the  damage  to  the  plaintiff's  property  was  the  natural  and  prox- 
imate consequence  of  the  defendant's  tort. 


SECT,  v.]         STONE   V.   BOSTON   &   ALBANY   RAILROAD   CO.  409 

Upon  the  evidence,  the  supposed  tort  of  the  defendant,  whether 
it  be  called  negligence  or  nuisance,  appears  to  have  been  limited  to  the 
keeping  of  oil  too  long  upon  the  platform.  Assuming  this  oil  to  have 
been  a  product  of  petroleum,  and  so  within  the  statute  cited,  neverthe- 
less the  defendant  as  a  common  carrier  was  bound  to  transport  it,  and 
deliver  it  to  the  consignees.  The  oil,  as  is  well  known,  was  an  article 
of  commerce  and  in  extensive  use,  and  the  defendant  was  bound 
to  transport  it  and  to  keep  it  for  a  reasonable  time  after  its  arrival 
in  Spencer,  in  readiness  for  delivery.  There  was  no  evidence  that  the 
oil  was  liable  to  spontaneous  ignition,  or  that  the  platform  was  an  un- 
suitable place  for  its  temporary  storage  till  it  could  be  removed,  or 
that  the  defendant  could  have  prevented  the  escape  of  oil  upon  the 
platform  from  leaky  barrels.  But  we  may  assume  without  discussion 
that  the  defendant  w^as  in  fault  in  keeping  the  oil  there  so  long,  and  that 
if  the  oil  had  been  removed  within  forty-eight  hours  after  its  arrival  the 
fire  would  probably  not  have  been  attended  with  such  disastrous  con- 
sequences. 

Nevertheless  the  question  remains,  and  in  our  view  this  becomes  the 
important  and  decisive  question  of  the  case,  whether,  assuming  that  the 
defendant  was  thus  in  fault,  the  plaintiff  introduced  any  evidence 
which  would  warrant  a  finding  by  the  jury  that  the  damage  to  his  prop- 
erty was  a  consequence  for  which  the  defendant  is  responsible;  or,  in 
other  words,  whether  the  act  of  Casserly  in  starting  the  fire  was  such 
a  consequence  of  the  defendant's  original  v\Tong  in  allowing  the  oil  to 
remain  upon  the  platform  that  the  defendant  is  responsible  to  the  plain- 
tiff for  it. 

In  approaching  this  question,  it  must  be  borne  in  mind  that  Casserly 
was  in  no  sense  a  servant,  agent,  or  guest  of  the  defendant.  He  brought 
a  load  of  goods  to  the  defendant's  station  to  be  carried  upon  the  de- 
fendant's railroad.  The  defendant  was  bound  by  law  to  accept  and 
carry  them.  It  could  not  lawfully  exclude  Casserly  from  its  grounds. 
By  Pub.  Sts.  c.  112,  §  188,  it  was  bound  to  give  all  persons  reasonable 
and  equal  terms,  facilities,  and  accommodations  for  the  transportation 
of  merchandise  upon  its  railroad,  and  for  the  use  of  its  depot  and  other 
buildings  and  grounds.  Casserly  came  there  in  his  own  right,  and  the 
defendant  is  not  responsible  for  him  in  the  same  way  that  perhaps 
it  might  be  responsible  for  a  servant,  agent,  or,  according  to  some 
statements  of  the  law,  guest.  Lothrop  v.  Thayer,  138  Mass.  466. 
It  is  also  to  be  borne  in  mind  that  this  was  not  a  case  of  spontaneous 
ignition  of  a  substance  liable  to  ignite  spontaneously,  as  was  the  case 
in  Vaughan  v.  Menlove,  3  Bing.  N.  C.  468.  Nor  did  the  defendant  owe 
to  the  plaintiff  the  duties  of  a  carrier  of  passengers  or  freight  towards  its 
customers,  or  any  other  duties  growing  out  of  a  contract  with  the  plain- 
tiff. There  was  no  contract  of  any  kind  between  the  plaintiff  and  the 
defendant. 

The  rule  is  very  often  stated  that  in  law  the  proximate  and  not  the 


410        STONE  V.    BOSTON  &  ALBANY  RAILROAD  CO.   [CHAP.  III. 

remote  cause  is  to  be  regarded ;  and  in  applying  this  rule  it  is  sometimes 
said  that  the  law  will  not  look  back  from  the  injurious  consequence 
beyond  the  last  sufficient  cause,  and  especially  that  where  an  intelligent 
and  responsible  human  being  has  intervened  between  the  original  cause 
and  the  resulting  damage,  the  law  will  not  look  back  beyond  him.  This 
ground  of  exonerating  an  original  wrongdoer  may  be  found  discussed 
or  suggested  in  the  following  decisions  and  text-books,  amongst  others: 
CliiTord  v.  Atlantic  Cotton  Mills,  146  Mass.  47;  Elmer  v.  Fessenden, 
151  Mass.  359;  Hayes  v.  Hyde  Park,  153  Mass.  514;  Freeman  v. 
Mercantile  Accident  Association,  156  Mass.  351;  Lynn  Gas  &  Electric 
Co.  V.  Meriden  Ins.  Co.,  158  Mass.  570;  Mutual  Ins.  Co.  v.  Tweed, 
7  Wall.  44;  Milwaukee  &  St.  Paul  Railway  v.  Kellogg,  94  U.  S.  469; 
Washington  &  Georgetown  Railroad  v.  Hickey,  166  U.  S.  521;  Reiper 
V.  Nichols,  31  Hun,  491;  Mars  v.  Delaware  &  Hudson  Canal,  54  Hun, 
625;  Read  v.  Nichols,  118  N.  Y.  224;  Leavitt  v.  Bangor  &  Aroostook 
Railroad,  89  Maine,  509;  Cuff  v.  Newark  &  New  York  Railroad,  6 
Vroom,  17;  Delaware,  Lackawanna  &  Western  Railroad  v.  Salmon, 
10  Vroom,  299;  Curtin  v.  Somerset,  140  Penn.  St.  70;  Pennsylvania 
Co.  V.  Whitlock,  99  Ind.  16;  Goodlander  Mill  Co.  v.  Standard  Oil  Co., 
63  Fed.  Rep.  400,  405;  Shearman,  Negl.  §§  38,  666;  Whart.  Negl. 
§§  134  et  seq. 

It  cannot,  however,  be  considered  that  in  all  cases  the  intervention 
even  of  a  responsible  and  intelligent  human  being  will  absolutely  exon- 
erate a  preceding  wrongdoer.  Many  instances  to  the  contrary  have 
occurred,  and  these  are  usually  cases  where  it  has  been  found  that  it 
was  the  "luty  of  the  original  wrongdoer  to  anticipate  and  provide 
against  such  intervention,  because  such  intervention  was  a  thing  likely 
to  happen  in  the  ordinary  course  of  events.  Such  was  the  case  of  Lane 
V.  Atlantic  Works,  111  Mass.  136,  where  it  was  found  by  the  jury  that 
the  meddling  of  young  boys  with  a  loaded  truck  left  in  a  public  street 
was  an  act  which  the  defendants  ought  to  have  apprehended  and  pro- 
\dded  against,  and  the  verdict  for  the  plaintiffs  was  allowed  to  stand. 
In  the  carefully  expressed  opinion  by  Mr.  Justice  Colt  the  court 
say:  "In  actions  of  this  description,  the  defendant  is  liable  for  the 
natural  and  probable  consequences  of  his  negligent  act  or  omission. 
The  injury  must  be  the  direct  result  of  the  misconduct  charged;  but 
it  will  not  be  considered  too  remote  if,  according  to  the  usual  experience 
of  mankind,  the  result  ought  to  have  been  apprehended.  The  act  of 
a  third  person,  intervening  and  contributing  a  condition  necessary  to 
the  injurious  effect  of  the  original  negligence,  will  not  excuse  the  first 
wrongdoer,  if  such  act  ought  to  have  been  foreseen.  The  original  neg- 
ligence still  remains  a  culpable  and  direct  cause  of  the  injury.  The  test 
is  to  be  found  in  the  probable  injurious  consequences  which  were  to 
be  anticipated,  not  in  the  number  of  subsequent  events  and  agencies 
which  might  arise."  According  to  this  statement  of  the  law,  the  ques- 
tions in  the  present  case  are.  Was  the  starting  of  the  fire  by  Casserly 


II 


SECT,  v.]  STONE   V.    BOSTON    &    ALBANY    RAILROAD    CO.         .  411 

the  natural  and  probable  consequence  of  the  defendant's  negligent 
act  in  leaving  the  oil  upon  the  platform?  According  to  the  usual  ex- 
perience of  mankind,  ought  this  result  to  have  been  apprehended? 
The  question  is  not  whether  it  was  a  possible  consequence,  but  whether 
it  was  probable,  that  is,  likely  to  occur,  according  to  the  usual  expe- 
rience of  mankind.  That  this  is  the  true  test  of  responsibility  appli- 
cable to  a  case  like  this  has  been  held  in  very  many  cases,  according 
to  which  a  wrongdoer  is  not  responsible  for  a  consequence  which  is 
merely  possible,  according  to  occasional  experience,  but  only  for  a 
consequence  which  is  probable,  according  to  ordinary  and  usual 
experience.  One  is  bound  to  anticipate  and  pro\'ide  against  what 
usually  happens  and  what  is  likely  to  happen;  but  it  would  impose 
too  heavy  a  responsibility  to  hold  him  bound  in  like  manner  to  guard 
against  what  is  unusual  and  unlikely  to  happen,  or  what,  as  it  is  some- 
times said,  is  only  remotely  and  slightly  probable.  A  high  degree  of 
caution  might,  and  perhaps  would,  guard  against  injurious  consequences 
w'hich  are  merely  possible;  but  it  is  not  negligence,  in  a  legal  sense,  to 
omit  to  do  so. 

There  may  not  always  have  been  entire  consistency  in  the  applica- 
tion of  this  doctrine;  but,  in  addition  to  cases  of  boys  meddling  with 
things  left  in  a  public  street,  courts  have  also  held  it  competent  for 
a  jury  to  find  that  the  injury  was  probable,  although  brought  about 
by  a  new  agency,  when  heavy  articles  left  near  an  opening  in  the  floor 
of  an  unfinished  building,  or  in  the  deck  of  a  vessel,  were  accidentally 
jostled  so  that  they  fell  upon  persons  below;  McCauley  v.  Norcross, 
155  Mass.  584;  The  Joseph  B.  Thomas,  81  Fed.  Rep.  578;  when  sheep, 
allowed  to  escape  from  a  pasture  and  stray  away  in  a  region  frequented 
by  bears,  were  killed  by  the  bears;  Oilman  v.  Noyes,  57  N.  H.  627;  and 
when  a  candle  or  match  was  lighted  by  a  person  in  search  of  a  gas  leak, 
with  a  view  to  stop  the  escape  of  gas;  Koelsch  v.  Philadelphia  Co.,  152 
Penn.  St.  355;  and  in  other  cases  not  necessary  to  be  specially  referred 
to.  In  all  of  these  cases,  the  real  ground  of  decision  has  been  that 
the  result  was  or  might  be  found  to  be  probable,  according  to  common 
experience. 

Without  dwelling  upon  other  authorities  in  detail,  we  will  mention 
some  of  those  in  which  substantially  this  view  of  the  law  has  been 
stated.  Davidson  v.  Nichols,  11  Allen,  514;  McDonald  v.  Snelling, 
14  Allen,  290;  Tutein  v.  Hurley,  98  Mass.  211;  Hoadley  r.  Northern 
Transportation  Co.,  115  Mass.  304;  Hill  v.  Win.sor,  118  Ma.ss.  251; 
Derry  v.  Flitner,  118  Mass.  131;  Freeman  v.  Mercantile  Accident  Asso- 
ciation, 156  Mass.  351;  Spade  v.  Lynn  &  Boston  Railroad,  168  Mass. 
285,  and  cases  there  cited;  Cosulich  v.  Standard  Oil  Co.,  122  N.  Y.  118; 
Rhodes  v.  Dunbar,  57  Penn.  St.  274;  Hoag  v.  Lake  Shore  &  Michigan 
Southern  Railroad,  85  Penn.  St.  293;  Behling  v.  Southwest  Penn. 
Pipe  Lines,  160  Penn.  St.  359;  Goodlander  Mill  Co.  v.  Standard  Oil 
Co.,  63  Fed.  Rep.  400,  405,  406;    Haile  v.  Texas  &  Pacific  Railway, 


412  STONE   V.    BOSTON    &   ALBANY   RAILROAD    CO.      [CIIAP.  III. 

60  Fed.  Rep.  557;  Clark  v.  Chambers,  3  Q.  B.  D.  327;  Whart.  Negl. 
(2d  ed.)  §§  74,  76,  78,  138-145,  155,  955;  Cooley,  Torts,  69,  70;  Add. 
Torts,  40;  Pollock,  Torts,  388;  Mayne,  Damages,  39,  47,  48.  For  a 
recent  English  case  involving  a  question  of  remoteness,  see  Engel- 
hart  V.  Farrant,  [1897]  1  Q.  B.  240.  The  rule  exempting  a  slanderer 
from  damages  caused  by  a  repetition  of  his  words  rests  on  the  same 
ground.  Hastings  v.  Stetson,  126  Mass.  329;  Shurtleff  v.  Parker, 
130  Mass.  293;  Elmer  v.  Fessenden,  151  Mass.  359. 

Tried  by  this  test,  the  defendant  is  not  responsible  for  the  conse- 
quences of  Casserly's  act.  There  was  no  close  connection  between  it 
and  the  defendant's  negligence.  There  w?>.s  nothing  to  show  that  such  a 
consequence  had  ever  happened  before,  during  the  eight  years  covered 
by  the  plaintiff's  testimony,  or  that  there  were  any  existing  circum- 
stances which  made  it  probable  that  it  would  happen.  It  was  of  course 
possible  that  some  careless  person  might  come  along  and  throw  down 
a  lighted  match  where  a  fire  would  be  started  by  it.  This  might,  in- 
deed, have  happened  upon  the  plaintiff's  own  premises,  or  in  any  other 
place  where  inflammable  materials  were  gathered.  But  it  was  not 
according  to  the  usual  and  ordinary  course  of  events.  In  failing  to 
anticipate  and  guard  against  such  an  occurrence  or  accident,  the 
defendant^nolated  no  legal  duty  which  it  owed  to  the  plaintiff.  What 
qualification,  if  any,  of  this  doctrine  should  be  made  in  case  of  the 
storage  of  high  explosives,  like  gunpowder  and  dynamite,  we  do  not 
now  consider.  See  Rudder  v.  Koopmann,  116  Ala.  332;  Kinney  v. 
Koopma-m,  116  Ala.  310;  Rhodes  v.  Dunbar,  57  Penn.  St.  274,  290. 

The  plaintiff,  however,  contends  that  this  question  should  have 
been  submitted  to  the  jury.  This  course  would  have  been  necessary, 
if  material  facts  had  been  in  dispute.  But  where  upon  all  the  e\'idence 
the  court  is  able  to  see  that  the  resulting  injury  was  not  probable,  but 
remote,  the  plaintiff  fails  to  make  out  his  case,  and  the  court  should 
so  rule  the  same  as  in  cases  where  there  is  no  sufficient  proof  of  negli- 
gence. McDonald  v.  Snelling,  14  Allen,  290,  299.  In  Hobbs  v.  London 
&  Southwestern  Railway,  L.  R.  10  Q.  B.  Ill,  122,  Blackburn,  J. 
said :  "  I  do  not  think  that  the  question  of  remoteness  ought  ever  to  be 
left  to  a  jury ;  that  would  be  in  effect  to  say  that  there  shall  be  no  such 
rule  as  to  damages  being  too  remote."  It  is  common  practice  to  with- 
draw cases  from  the  jury  on  the  ground  that  the  damages  are  too  re- 
mote. Hammond  v.  Bussey,  20  Q.  B.  D.  79,  89;  Read  v.  Nichols, 
118  N.  Y.  224;  Cuff  v.  Newark  &  New  York  Railroad,  6  Vroom,  17; 
Behling  v.  Southwest  Penn.  Pipe  Lines,  160  Penn.  St.  359;  Goodlander 
Mill  Co.  V.  Standard  Oil  Co.,  63  Fed.  Rep.  400,  405,  406;  Pennsylvania 
Co.  V.  Whitlock,  99  Ind.  16;  Carter  v.  Towne,  103  Mass.  507;  Hoad- 
ley  V.  Northern  Transportation  Co.,  115  Mass.  304;  Hutchinson 
V.  Boston  Gas  Light  Co.,  122  Mass.  219;  Elmer  v.  Fessenden,  151  Mass. 
359. 

The  plaintiff  further  contends  that  the  negligence  of  the  defendant 


SECT,  v.]  BROWN   V.   CUMMINGS.  413 

in  keeping  the  oil  upon  the  platform  was  concurrent  with  the  careless 
act  of  Casserly,  and  that  therefore  it  was  a  case  where  two  wrongdoers 
acting  at  the  same  time  contributed  to  the  injurious  result.  But  this 
is  not  a  just  \aew  of  the  matter.  The  negligence  of  the  defendant  pre- 
ceded that  of  Casserly,  and  was  an  existing  fact  when  he  intervened, 
just  as  in  Lane  r.  Atlantic  Works,  111  Mass.  136,  the  negligence  of  the 
defendants  in  lea\ang  their  loaded  truck  in  the  street  preceded  that  of 
the  boys  who  meddled  with  it. 

The  fact,  if  established,  that  the  defendant's  platform  with  the 
oil  upon  it  constituted  a  public  nuisance  is  immaterial,  under  the 
circumstances  of  the  present  case.  If  the  plaintiff  proved  a  nuisance, 
he  need  not  go  further  and  show  that  it  was  negligently  maintained. 
But  we  have  assumed  the  existence  of  negligence  on  the  part  of  the 
defendant.  Illegality  on  the  part  of  a  defendant  does  not  of  itself 
create  a  liability  for  remote  consequences,  and  illegality  on  the  part  of 
a  plaintiff  does  not  of  itself  defeat  his  right  to  recover  damages.  The 
causal  connection  between  the  two  still  remains  to  be  established. 
Hanlon  v.  South  Boston  Horse  Railroad,  129  Mass.  310;  Hyde  Park 
V.  Gay,  120  Mass.  589;  Hall  v.  Ripley,  119  Mass.  135;  Damon  v. 
Scituate,  119  Mass.  66;  Kidder  v.  Dunstable,  11  Gray,  342;  Hayes 
V.  Michigan  Central  Railroad,  111  U.  S.  228,  241.  In  order  to  maintain 
a  personal  action  to  recover  damages  for  a  public  nuisance,  the  plain- 
tiff must  show  that  his  particular  loss  or  damage  was  caused  by  the 
nuisance,  just  as  in  case  of  any  other  tort.  Wesson  v.  Washburn 
Iron  Co.,  13  Allen,  95;  101,  103;  Stetson  v.  Faxon,  19  Pick.  147,  154. 
And  in  considering  the  question  of  remoteness,  it  makes  no  difference 
what  form  of  WTongdoing  the  action  rests  upon.  Sherman  v.  Fall 
River  Iron  Works,  2  Allen,  524;  The  Notting  Hill,  9  P.  D.  105,  113; 
Mayne,  Damages,  48,  note. 

Without  considering  other  grounds  urged  by  the  defendant,  a  major- 
ity of  the  court  is  of  opinion  that,  upon  the  ev^idence,  the  defendant 
was  not  bound,  as  a  matter  of  legal  duty,  to  anticipate  and  guard  against 
an  act  like  that  of  Casserly,  he  being  a  stranger  coming  upon  the  defen- 
dant's premises  for  his  own  purposes  and  in  his  own  right. 

Exceptions  overruled.^ 


BROWN  V.  CUMMINGS. 
Supreme  Judicial  Court  of  Massachusetts,  1863. 

[Reported  7  Allen,  507.] 

Tort  for  an  assault  and  battery,  with  an  allegation  that  by  reason 
thereof  the  plaintiff  lost  a  position  as  surgeon's  mate  in  the  navy,  to 
which  he  was  about  to  be  appointed. 

^  See  also  Jennings  v.  Davns,  187  Fed.  703.  —  Ed. 


414 


BROWN   V.   CUMMINGS. 


[CHAP.  III. 


At  the  trial  in  the  superior  court,  before  Ames,  J.,  the  plaintiff 
was  permitted,  against  the  defendant's  objection,  to  testify  that 
before  the  assault  and  battery  complained  of  he  had  made  an  applica- 
tion for  the  position  of  surgeon's  mate;  but  that,  being  disabled  by  the 
assault  and  battery,  for  that  reason  he  had  soon  afterwards  withdrawn 
his  application.  He  made  no  further  attempt  to  show  that  he  had  lost 
the  situation,  and  this  evidence  was  not  afterwards  referred  to  by  the 
counsel  of  either  party,  or  by  the  court.  The  evidence  of  the  plaintiff 
tended  to  show  that  the  assault  was  of  an  unprovoked  and  aggravated 
character;  and  the  defence  proceeded  wholly  on  the  ground  that  the 
evidence  on  which  the  plaintiff  relied  was  untrue,  and  that  the  defend- 
ant had  committed  no  assault  and  battery  whatever. 

The  jury  returned  a  verdict  for  the  plaintiff,  with  damages  in  the 
sum  of  SlOO;  and  the  defendant  alleged  exceptions. 

Chapman,  J.  The  question  presented  by  the  bill  of  exceptions  is, 
whether  the  evidence  objected  to  ought  to  have  been  rejected.  If  the 
plaintiff  had  a  right,  under  his  declaration,  to  prove  the  loss  of  the  office 
of  surgeon's  mate  as  consequential  damages,  then  the  evidence  was 
properly  admitted;  because  it  was  pertinent  e\'idence  on  that  point, 
though  it  was  ob\'iously  insufficient  wdthout  proof  of  additional  facts. 

The  rule  of  law  is,  that  where  special  damages  are  not  alleged  in  the 
declaration,  the  plaintiff  can  prove  only  such  "damages  as  are  the  nec- 
essary as  well  as  proximate  result  of  the  act  complained  of;  but  where 
they  are  alleged,  they  may  be  proved  so  far  as  they  are  the  proximate 
though  not  the  necessary  result.  1  Chit.  PI.  (6th  ed.)  441;  2  Greenl. 
Ev.  §  256;  Dickinson  v.  Boyle,  17  Pick.  78.  As  the  declaration  in  this 
case  alleges  the  loss  of  the  office  as  special  damage,  the  e\adence  was 
admissible,  if  the  loss  can  be  regarded  as  a  proximate  result  of  the  assault 
and  battery.  So  far  as  we  have  been  able  to  find  authorities  on  the 
point,  (for  none  were  cited  on  behalf  of  the  plaintiff)  they  tend  to 
show  that  it  was  not  proximate,  but  remote.     In  Boyce  v.  Bayliffe, 

1  Camp.  58,  it  is  said  to  have  been  held  that,  in  an  action  for  false 
imprisonment,  Avith  an  allegation  that  the  plaintiff  thereby  lost  a 
lieutenancy,  he  could  not  recover  for  the  loss  because  it  was  remote. 
In  1  Chit.  PI.  440,  the  same  rule  of  law  is  stated.    In  Moore  v.  Adam, 

2  Chit.  R.  198,  which  was  an  action  for  assault  and  battery,  with  an 
allegation  of  special  damage,  the  plaintiff'  offered  to  prove  that,  in 
consequence  of  the  blows  given  to  him  by  the  defendant,  he  had  been 
driven  from  Alicant,  where  he  had  before  carried  on  trade  as  a  mer- 
chant.   This  was  held  to  be  too  remote. 

These  authorities  seem  to  us  to  be  in  conformity  with  the  principle 
stated  above.  We  do  not  see  how  the  loss  of  an  office  can  be  proxi- 
mately connected  with  an  assault  and  battery  as  its  cause.  There 
must  be  intervening  events  which  make  the  connection  more  or  less  re- 
mote; and  it  is  difficult  to  see  how  the  result  can  happen  without  the 
addition  of  independent  causes  also.    It  is  somewhat  like  the  case  of  a 


SECT,  v.]  SEITH    V.    COMMONWEALTH   ELECTRIC    CO.  415 

merchant  who  should  offer  to  prove  that,  in  consequence  of  an  assault 
and  battery,  he  was  unable  to  go  to  his  store,  and  thereby  lost  the  op- 
portunity to  close  a  particular  bargain  which  would  have  been  prof- 
itable; or  of  a  farmer  who  should  offer  to  prove  that  in  consequence 
of  such  an  act  he  was  unable  to  gather  in  his  crop  of  grain,  and  thereby 
lost  it.  In  the  present  case,  one  of  the  intervening  causes  of  the  loss 
of  the  office  appears  to  have  been  a  voluntary  act  of  the  plaintiff's 
own  will,  and  there  must  also  have  been  the  concurrent  voluntary  acts 
of  other  men.  The  evidence  ought  therefore  to  have  been  excluded. 
Although  this  evidence  was  not  noticed  by  counsel  on  either  side  in 
addressing  the  jury,  or  by  the  court  in  instructing  them,  yet  it  is  im- 
possible to  know  that  it  had  no  effect  upon  their  verdict.  After  it 
had  been  admitted,  against  the  objection  of  the  defendant's  counsel, 
the  jury  had  a  right  to  regard  it  as  legal  and  material,  unless  they  were 
afterwards  instructed  to  disregard  it. 

Exceptions  sustained} 


SEITH  V.  COMMONWEALTH  ELECTRIC  CO. 
Supreme  Court  of  Illinois,  1909. 

[Reported  241  III.  252.] 

Cartwright,  C.  J.^  The  important  question  presented  by  the  rec- 
ord and  argued  by  counsel  is  whether  the  negligence  alleged  was 
the  proximate  cause  of  the  injury  to  the  plaintiff.  No  mention  of  that 
question  is  made  in  the  opinion  of  the  Appellate  Court,  but  that  court 
must  have  concluded  that  the  negligence  of  the  defendant  was  the  prox- 
imate cause  of  the  injury,  since  there  could  be  no  recovery  on  account 
of  such  negligence  unless  there  was  a  causal  connection  between  the 
negligence  and  the  injury.  The  rules  for  determining  whether  a  neg- 
ligent act  or  omission  is  the  proximate  cause  of  an  injury  are  well  es- 
tablished and  have  been  applied  by  different  courts  in  numerous  cases 
to  different  conditions  of  fact.  There  has  been  practically  no  difference 
of  opinion  as  to  what  the  rules  are,  and  they  may  be  briefly  stated  as 
follows :  The  negligent  act  or  omission  must  be  the  cause  which  produces 
the  injury,  but  it  need  not  be  the  sole  cause  nor  the  last  or  nearest  cause. 
It  is  sufficient  if  it  concurs  with  some  other  cause  acting  at  the  same  time 
which,  in  combination  with  it,  causes  the  injury,  or  if  it  sets  in  motion  a 
chain  of  circumstances  and  operates  on  them  in  a  continuous  sequence, 
unbroken  by  any  new  or  independent  cause.  The  question  is  not 
determined  by  the  existence  or  non-existence  of  intervening  events, 

1  See  also  Ross  t.  Western  U.  T.  Co.,  SI  Fed.  676.  —  Ed. 

2  The  statement  of  the  evidence  is  omitted. —  Ed. 


416 


SEITH    V.   COMMONWEALTH    ELECTRIC   CO.  [CHAP.  IIL 


but  by  their  character  and  the  natural  connection  between  the  original 
act  or  omission  and  the  injurious  consequences.    To  constitute  proxi- 
mate cause  the  injury  must  be  the  natural  and  probable  consequence 
of  the  negligence,  and  be  of  such  a  character  as  an  ordinarily  prudent 
person  ought  to  have  foreseen  might  probably  occur  as  a  result  of  the 
negligence.    It  is  not  necessary  that  the  person  guilty  of  a  negligent  act 
or  omission  might  have  foreseen  the  precise  form  of  the  injury,  but 
when  it  occurs  it  must  appear  that  it  was  a  natural  and  probable  con- 
sequence of  his  negligence.     If  the  negligence  does  nothing  more  than 
furnish  a  condition  by  which  the  injury  is  made  possible,  and  that  con- 
dition causes  an  injury  by  the  subsequent  independent  act  of  a  third 
person,  the  two  are  not  concurrent  and  the  existence  of  the  condition 
is  not  the  proximate  cause  of  the  injury.    \Yhere  the  intervening  cause 
is  set  in  operation  by  the  original  negligence,  such  negligence  is  still 
the  proximate  cause,   and  where  the  circumstances  are  such  that 
the  injurious  consequences  might  have  been  foreseen  as  likely  to 
result  from  the  first  negligent  act  or  omission,  the  act  of  the  third  per- 
son will  not  excuse  the  first  wTongdoer.    \Yhen  the  act  of  a  third  per- 
son intervenes  which  is  not  a  consequence  of  the  first  wTongful  act 
or  omission  and  which  could  not  have  been  foreseen  by  the  exercise 
of  reasonable  diligence  and  \sathout  which  the  injurious  consequence 
could  not  have  happened,  the  first  act  or  omission  is  not  the  proxi- 
mate cause  of  the  injury.    The  test  is  whether  the  party  guilty  of  the 
first  act  or  omission  might  reasonably  have  anticipated  the  inter- 
vening cause  as  a  natural  and  probable  consequence  of  his  own  neg- 
ligence, and  if  so,  the  connection  is  not  broken;  but  if  the  act  of  the 
third  person  which  is  the  immechate  cause  of  the  injury  is  such  as 
in  the  exercise  of  reasonable  diligence  would  not  be  anticipated  and 
the  third  person  is  not  under  the  control  of  the  one  guilty  of  the  first 
act  or  omission,  the  connection  is  broken  and  the  first  act  or  omission 
is  not  the  proximate  cause  of  the  injury.    One  phase  of  the  rule  was 
stated  in  Chicago  Hair  and  Bristle  Co.  v.  INIueller,  203  111.  558,  as  fol- 
lows :  "  If  the  negligent  act  and  the  injury  are  known,  by  common  ex- 
perience, to  be  usual  in  consequence,  and  the  injury  such  as  is  liable, 
in  the  ordinary  course  of  events,  to  follow  the  act  of  negligence,  it  is 
a  question  of  fact  for  the  jury  whether  the  negligence  was  the  proxi- 
mate cause  of  the  injury;"  and  there  is  a  general  reWew  of  the  subject 
in  Thompson  on  Negligence,  chap.  5.     In  Braun  v.  Craven,  175  III. 
401,  the  court  said:  "The  principle  is,  damages  which  are  recoverable 
for  negligence  must  be  such  as  are  the  natural  and  reasonable  result  of 
defendant's  acts,  and  the  consequences  must  be  such  as  in  the  ordinary 
course  of  tilings  would  flow  from  the  acts  and  could  be  reasonably 
anticipated  as  a  result  thereof."     In  Pollock  on  Torts  the  author  de- 
clares that  the  only  rule  tenable,  on  principle,  where  the  liability  is 
founded  solely  on  negligence,  is  contained  in  the  statement  "that  a 
person  is  expected  to  anticipate  and  guard  against  all  reasonable  con- 


SECT,  v.]  SEITH    V.  COMMONWEALTH    ELECTRIC   CO.  417 

sequences,  but  that  he  is  not  by  the  law  of  England  expected  to  antici- 
pate and  guard  against  that  which  no  reasonable  man  would  expect  to 
occur."  (Webb's  Pollock  on  Torts,  p.  45.)  Judge  Cooley  states  the 
rule  as  follows:  "If  an  injury  has  resulted  in  consequence  of  a  certain 
wrongful  act  or  omission,  but  only  through  or  by  means  of  some  inter- 
vening cause,  from  which  last  cause  injury  followed  as  a  direct  and  im- 
mediate consequence,  the  law  will  refer  the  damage  to  the  last  or  proxi- 
mate cause  and  refuse  to  trace  it  to  that  which  was  more  remote." 
(Cooley  on  Torts,  (3d  ed.)  99.)  In  Wharton  on  Negligence  (§  134) 
is  found  the  following  question  and  answer:  "Supposing  that  if  it  had 
not  been  for  the  intervention  of  a  responsible  third  party  the  defendant's 
negligence  would  have  produced  no  damage  to  the  plaintiff,  is  the  de- 
fendant liable  to  the  plaintiff?  This  question  must  be  answered  in  the 
negative,  for  the  general  reason  that  causal  connection  between  neg- 
ligence and  damage  is  broken  by  the  interposition  of  independent,  re- 
sponsible human  action."  The  Supreme  Court  of  the  United  States, 
in  the  case  of  Milwaukee  and  St.  Paul  Railroad  Co.  v.  Kellogg,  94  U.  S. 
469,  said :  "  The  question  always  is,  was  there  an  unbroken  connection 
between  the  wrongful  act  and  the  injury, —  a  continuous  operation? 
Did  the  facts  constitute  a  continuous  succession  of  events  so  linked 
together  as  to  make  a  natural  whole,  or  was  there  some  new  and  in- 
dependent cause  intervening  between  the  wrong  and  the  injury?" 

The  principles  on  which  the  question  of  proximate  cause  depends  are 
illustrated  by  the  facts  of  various  cases  in  this  court.  In  Village  of 
Carterville  v.  Cook,  129  111.  152,  a  much  used  sidewalk  elevated  six 
feet  above  the  ground  was  unprotected  by  railing  or  other  guard,  and 
by  the  inadvertent  or  negligent  sho\-ing  by  one  boy  of  another  boy 
against  the  plaintiff,  the  plaintiff  was  pushed  from  the  sidewalk  and 
injured.  That  was  plainly  a  case  where  the  \dllage  ought  to  have 
anticipated  the  consequences  of  its  negligence.  In  American  Express  Co. 
V.  Risley,  179  111.  295,  the  express  company  was  held  liable  for  the 
consequences  of  placing  a  chute  crosswise  on  an  express  car,  because  it 
could  have  been  foreseen,  by  the  exercise  of  ordinary  care,  that  the 
injury  which  followed  might  result  from  the  act.  In  Garibaldi  & 
Cuneo  V.  O'Connor,  210  111.  284,  where  the  plaintiff  stepped  upon  a 
banana  and  fell,  it  was  held  that  when  the  intervening  cause  of  an 
injury  could  reasonably  have  been  anticipated,  the  original  negligent 
act,  if  it  contributed  to  an  injury,  may  be  regarded  as  the  proximate 
cause.  In  Elgin,  Aurora  and  Southern  Traction  Co.  v.  Wilson,  217 
111.  47,  the  declaration  charged  defendant  with  negligence  in  failing 
to  have  a  switch  lever  locked  and  in  failing  to  have  the  same  guarded 
at  an  amusement  park.  There  was  no  lock  on  the  switch  and  the 
switch  tender  left  his  post  for  the  attractions  of  a  game  of  ball.  It 
was  held  proper  to  submit  to  the  jury  the  question  whether  the  defend- 
ant had  discharged  its  duty  toward  a  passenger,  although  the  mischie- 
vous act  of  a  boy  in  changing  the  switch  contributed  to  the  injury. 


418 


SEITH   V.    COMMONWEALTH    ELECTRIC    CO.  [CHAP.  III. 


It  was  a  case  where  the  intervening  cause  of  changing  an  unlocked 
and  unguarded  switch  might  reasonably  have  been  anticipated.  In 
Illinois  Central  Railroad  Co.  v.  Siler,  229  111.  390,  the  defendant  negli- 
gently set  a  fire,  and  the  owner  of  a  house,  in  an  effort  to  extinguish 
the  fire,  received  an  injury  from  which  she  died.  The  defendant  was 
bound  to  anticipate,  when  the  fire  started,  that  the  decedent  would 
try  to  put  it  out,  and  if  in  so  doing,  with  reasonable  care  and  caution, 
she  was  injured,  the  setting  of  the  fire  was  the  proximate  cause  of  the 
injury,  as  a  result  which  might  be  anticipated.  Judge  Thompson  il- 
lustrates the  rule  by  supposing  a  similar  case.  (1  Thompson  on  Negli- 
gence, §  64.)  In  True  &  True  Co.  v.  Woda,  201  111.  315,  it  was  re- 
garded as  a  question  of  fact  whether  the  negligence  of  the  defendant 
in  piling  lumber  on  the  sidewalk  in  a  public  street  w^here  he  knew 
the  children  of  the  neighborhood  were  in  the  habit  of  playing  was  the 
proximate  cause  of  an  injury,  and  this  was  upon  the  ground  that  the 
defendant  should  have  known  the  children  would  be  likely  to  climb 
on  the  lumber  at  play  and  be  injured.  In  Siegel,  Cooper  &  Co.  v. 
Trcka,  218  111.  559,  where  the  defendants  were  guilt}-  of  negligence 
in  the  construction  of  an  elevator  shaft  and  a  boy  fourteen  years  old 
was  thrown  down  by  another  boy,  it  was  considered  that  the  two  acts 
of  negligence  both  contributed  to  the  result,  and  clearly  the  defendant 
might  reasonably  have  anticipated  what  actually  happened  in  the  use 
of  the  elevator. 

On  the  other  hand,  in  Hullinger  v.  Worrell,  S3  111.  220,  in  an  action 
on  the  case  against  a  sheriff  for  negligence  in  suffering  a  prisoner  to 
escape,  the  sheriff  was  held  not  liable  for  damages  resulting  from  an 
assault  by  the  prisoner  on  the  plaintiff,  because  the  assault  was  not 
the  natural  and  probable  consequence  of  permitting  the  prisoner 
to  escape  from  custodv,  and  not  being  anticipated  was  not  the 
proximate  result.  In  City  of  Rockford  v.  Tripp,  in  the  same  volume, 
page  247,  where  a  horse  with  a  cutter  became  frightened  and  ran  away, 
and  in  passing  where  a  team  was  hitched  to  a  post  set  by  the  city  for 
a  hitching  post,  frightened  the  team  and  caused  the  team  to  break 
the  post  and  run  away  and  they  ran  over  a  person  in  the  street,  it 
was  held  that  a  defect  in  the  post  was  not  the  proximate  cause  of  the 
injury.  In  Wolff  Manf.  Co.  v.  Wilson,  152  111.  9,  a  barber's  post  inse- 
curely fastened  stood  near  the  outer  edge  of  a  sidewalk,  and  the  driver 
of  a  team  in  backing  his  wagon  knocked  the  post  over,  injuring  the 
plaintiff.  The  post,  although  not  fastened  as  it  should  have  been, 
would  not  have  caused  an  injury  but  for  the  act  of  the  driver  in  backing 
against  it,  and  it  was  held  the  intervening  cause  was  the  proximate 
cause  of  the  injury.  In  Braun  v.  Craven,  supra,  the  court  affirmed  the 
judgment  of  the  Appellate  Court  reversing  the  judgment  of  the  trial 
court  without  remanding  the  cause,  on  the  ground  that  the  condition 
of  the  plaintiff  could  not  have  been  reasonably  anticipated  as  a  result 
of  the  defendant's  neghgence. 


SECT,  v.]  SEITH   V.    COMMONWEALTH  ELECTRIC   CO.  419 

Applying  the  rules  of  law  to  this  case,  it  is  clear  that  the  defendant 
might  reasonably  anticipate,  in  case  a  wire  should  fall  upon  the  side- 
walk or  where  persons  using  the  sidewalk  or  roadway  would  be  likely 
to  be  injured,  that  a  policeman  or  some  other  person  might  attempt 
to  remove  it  to  prevent  injury,  and  if  in  so  doing,  or  as  a  result  of  the 
policeman's  act,  some  other  person  should  be  injured  the  defendant 
would  be  liable,  since  such  effort  to  remove  the  cause  of  danger  might 
naturally  be  anticipated.  Of  that  character  are  the  cases  relied  upon 
to  sustain  the  judgment.  (Kansas  City  v.  Gilbert,  65  Kan.  469; 
Smith  V.  M.  and  K.  Telephone  Co.,  113  Mo.  App.  429;  Citizens'  Tele- 
phone Co.  V.  Thomas,  (Tex.)  99  S.  W.  Rep.  879.)  The  defendant 
would  be  liable  although  there  was  some  intervening  cause,  if  it  were 
such  as  would  naturally  be  anticipated  as  the  result  of  the  wire  falling 
to  the  ground,  but  it  seems  inconceivable  that  the  defendant  ought  to 
have  anticipated  that  a  policeman  would  throw  the  wire  upon  the 
plaintiff  by  striking  it  with  his  club  when  it  was  lying  where  no  injury 
would  be  done  by  it  either  to  a  person  on  the  sidewalk  or  the  roadway. 
There  is  no  evidence  tending  in  the  slightest  degree  to  prove  that  the 
policeman  struck  the  wire  for  the  purpose  of  removing  it  as  a  source  of 
danger.  He  testified  that  he  did  not  touch  it  and  told  the  plaintiff 
to  get  away  from  it;  but  assuming,  as  we  are  bound  to  do,  that  the 
testimony  of  the  children  was  true  and  that  he  struck  the  wire  and 
knocked  it  toward  the  sidewalk,  that  testimony  did  not  even  remotely 
tend  to  prove  that  he  was  attempting  to  remove  the  wire  so  as  to  prevent 
injurious  consequences.  The  injury  to  the  plaintiff  followed  as  a  direct 
and  immediate  consequence  of  the  independent  act  of  the  policeman, 
and  but  for  such  act  any  negligence  of  the  defendant  would  have 
caused  no  injury  to  the  plaintiff.  In  the  case  of  Harton  v.  Forest  City 
Telephone  Co.,  59  S.  E.  Rep.  (N.  C.)  1022,  the  telephone  company  negli- 
gently maintained  a  pole  in  a  dangerous  condition  until  it  fell  across 
a  highway.  Three  persons  passing  in  a  hack  set  the  pole  up  again  in 
the  same  hole  and  propped  it  with  a  stick  six  to  eight  feet  long,  pro- 
cured from  a  woodpile  nearby.  The  pole  afterward  fell  and  killed  the 
plaintiff's  daughter,  who  was  in  a  buggy  with  the  plaintiff  in  the  road, 
and  the  court  held  that  there  was  no  liability,  since  the  negligence 
of  the  telephone  company  was  not  the  proximate  cause  of  the  injury. 
If  it  could  have  been  argued  in  that  case  that  the  telephone  company 
might  reasonably  have  anticipated  the  removal  of  the  pole  from  the 
highway  and  the  re-setting  of  it,  no  such  argument  can  apply  to  the 
act  of  the  policeman.  The  wire  was  lying  between  the  sidewalk  and  the 
roadway,  where  it  would  injure  no  one,  and  the  evidence  most  favorable 
to  the  plaintiff  is,  that  the  policeman  struck  it  with  his  club  and  threw 
it  upon  the  plaintiff  as  he  was  passing  upon  the  sidewalk.  The  negli- 
gence of  the  defendant  produced  a  condition  which  made  the  injury 
possible,  but  the  injury  would  not  have  occurred  but  for  the  independent 
act  of  the  policeman.     That  act  was  an  independent  cause  of  the  in- 


420  SEITH   V.    COMMONWEALTH    ELECTRIC    CO.  [CHAP.  III. 

jury  by  one  for  whose  act  the  defendant  was  not  responsible  and  by 
one  over  whom  it  had  no  control.  It  follows  that  the  defendant  was  not 
liable  for  such  act,  and  the  negligence  alleged  and  which  the  e\'idence 
tended  to  prove,  was  not  the  proximate  cause  of  the  injury.  The  court 
ought  therefore  to  have  given  the  instruction  directing  a  verdict  of  not 
guilty. 

The  judgments  of  the  Appellate  Court  and  circuit  court  are  reversed 
and  the  cause  is  remanded  to  the  circuit  court. 

Reversed   and   remanded.^ 

ViCKERS,  J.,  dissenting:  I  am  not  in  accord  with  the  conclusion 
reached  by  the  majority  opinion.  The  judgment  is  reversed  because 
the  trial  court  refused  to  direct  a  verdict  for  appellant.  The  conclusion 
is  based  on  the  assumption  that  there  is  no  evidence  fairly  tending  to 
show  that  the  injury  might  reasonably  have  been  anticipated  from  the 
negligence  of  appellant. 

The  majority  opinion,  after  stating  the  facts  and  reviewing  numerous 
authorities,  proceeds  as  follows:  "Applying  the  rules  of  law  to  this 
case,  it  is  clear  that  the  defendant  might  reasonably  anticipate,  in  case 
a  wire  should  fall  upon  the  sidewalk  or  where  persons  using  the  side- 
walk or  roadway  would  be  likely  to  be  injured,  that  a  policeman  or 
some  other  person  might  attempt  to  remove  it  to  prevent  injury,  and 
if  in  so  doing,  or  as  a  result  of  the  policeman's  act,  some  other  person 
should  be  injured  the  defendant  would  be  liable,  since  such  effort  to 
remove  the  cause  of  danger  might  naturally  be  anticipated." 

With  the  rule  announced  in  the  above  quotation  I  have  not  the 
slightest  quarrel.  It  is  difficult  to  see  how  it  is  legally  or  logically 
possible  to  avoid  a  conclusion  directly  opposite  to  the  one  reached  in 
the  majority  opinion  consistent  with  the  rule  laid  down  in  the  quotation 
which  I  have  made.  The  sentences  immediately  following  the  quotation 
show  the  manner  in  which  the  majority  opinion  seeks  to  avoid  the  log- 
ical conclusion  which  seems  to  me  ought  necessarily  to  follow  from  the 
premises  previously  laid  down.  Those  sentences  are  as  follows:  "The 
defendant  would  be  liable  although  there  was  some  intervening  cause, 
if  it  were  such  as  would  naturally  be  anticipated  as  the  result  of  the 
wire  falling  to  the  ground,  but  it  seems  inconceivable  that  the  de- 
fendant ought  to  have  anticipated  that  a  policeman  would  throw  the 
wire  upon  the  plaintiff  by  striking  it  with  his  club  when  it  was  l^'ing 
where  no  injury  would  be  done  by  it  either  to  a  person  on  the  sidewalk  or 
the  roadway.  .  .  .  The  wire  was  lying  between  the  sidewalk  and  the 
roadway,  where  it  would  injure  no  one,  and  the  exidence  most  favorable 
to  the  plaintiff  is,  that  the  policeman  struck  it  with  his  club  and  threw 
it  upon  the  plaintiff  as  he  was  passing  upon  the  sidewalk." 

I  am  wholly  unable  to  see  how  this  language  can  be  reconciled  with 
the  quotation  first  made  from  the  majority  opinion.     In  the  first  quo- 

1  See  also  Brown  v.  Chesapeake  &  O.  Ry.,  135  Ky.  798,  123  S.  W.  298.  —  Ed. 


SECT,  v.]  SEITH    V.   COMMONWEALTH    ELECTEIC    CO.  421 

tation  it  is  said  that  the  defendant  ought  to  anticipate  that  the  police- 
man might  attempt  to  remove  the  wire  and  injure  some  one,  and  for  an 
injury  thus  caused  the  defendant  would  be  liable.  In  the  second  quo- 
tation it  is  said  that  if  a  policeman  should  strike  the  wire  with  his  club 
while  it  was  lying  where  it  would  do  no  injury  to  any  one  on  the  side- 
walk, it  is  inconceivable  that  the  defendant  could  have  anticipated 
an  injury  thus  brought  about.  What  is  it  that  distinguishes  the  situ- 
ation presented  in  the  first  quotation  from  that  implied  in  the  second? 
Certainly  the  fact  that  the  policeman  used  his  club  instead  of  his  hands 
or  feet  to  remove  the  live  wire  is  not  sufficient  to  render  the  liability 
"inconceivable"  in  the  last  proposition  and  "clear"  in  the  first. 
Does  the  fact  mentioned  in  the  second  proposition,  that  the  wire  was 
lying  where  no  injury  would  be  done  by  it  to  a  person  on  the  sidewalk, 
make  the  liability  inconceivable?  While  the  majority  opinion  does  not 
say  so  in  so  many  words,  yet  there  is  an  intimation  that  the  wire 
was  not  immediately  on  the  sidewalk,  and  for  this  reason  the  police- 
man would  not  have  attempted  to  remove  it.  If  this  be  conceded  it 
does  not  help  the  situation.  Suppose  the  policeman  did  use  poor  judg- 
ment in  deciding  to  remove  the  wire  or  in  selecting  the  means  to  accom- 
plish that  purpose, —  or,  to  put  it  still  stronger,  suppose  the  policeman 
was  guilty  of  negligence  in  attempting  to  remove  the  wire, —  then  the 
utmost  that  can  be  claimed  is  that  the  policeman's  negligence  operated 
jointly  with  the  negligence  of  appellant  in  producing  the  injury,  and 
ii  this  view  be  taken,  under  the  authorities  cited  in  the  majority  opinion 
appellant  is  liable.  If  the  policeman,  of  his  own  malice  or  wantonness, 
threw  the  wire  on  appellee  and  intentionally  injured  him  appellant 
would  not  be  liable.  There  is,  however,  not  a  particle  of  e\adence  to 
sustain  that  theory  and  I  do  not  understand  the  majority  opinion  to 
proceed  upon  that  hypothesis.  The  negligence  of  appellant  is  con- 
clusively settled  by  the  judgment  of  the  Appellate  Court.  There  is 
no  pretense  that  appellee  was  guilty  of  contributory  negligence.  At 
least,  if  that  question  was  ever  in  the  case,  it  is  likewise  settled  by  the 
judgment  of  affirmance  by  the  Appellate  Court.  The  only  thing  left, 
then,  is  the  question  of  fact  whether  the  injury  resulted  from  causes 
which  ought  to  have  been  reasonably  anticipated  by  appellant.  Under 
the  rule  first  above  quoted  from  the  majority  opinion  there  ought  to  be 
no  doubt  as  to  this  question.  The  injury  occurred  by  the  attempt  of  a 
policeman  in  good  faith  to  remove  a  danger  from  a  public  highway, 
placed  there  by  the  negligence  of  appellant.  Applying  the  law  to  these 
facts,  I  think  appellant  is  Hable. 
Mr.  Justice  Carter,  also  dissenting. 


422       SCHWARTZ    V.    CALIFORNIA    GAS   &   ELECTRIC    CORP.       [CHAP.  III. 


SCHWARTZ   V.   CALIFORNIA  GAS  &  ELECTRIC 
CORPORATION. 

[Supreme  Court  of  California,  1912.] 

[Reporied  163  Cal.  398.] 

Per  Curiam.  This  action  was  brought  to  recover  damages  for 
injuries  to  a  horse  known  as  "Joe  Terry"  belonging  to 'plaintiff,  caused, 
it  is  alleged,  by  the  horse  stepping  upon  or  against  an  insulator  dropped 
by  an  employee  of  defendants  upon  a  tract  of  land  in  Yolo  County 
known  as  the  "Van  Zee  Place,"  occupied  by  plaintiff  at  the  time  of 
such  injuries.  The  jury  gave  a  verdict  in  favor  of  plaintiff  for  the 
sum  of  $6,475,  for  which  amount  judgment  was  entered.  An  ap- 
peal was  taken  by  defendants  from  the  judgment  and  from  an  order 
denying  their  motion  for  a  new  trial.  Two  decisions  have  been  ren- 
dered on  these  appeals  by  the  district  court  of  appeal  for  the  third 
district,  the  judgment  and  order  being  reversed  by  the  first  decision 
on  account  of  error  of  the  trial  court  in  refusing  an  instruction  as  re- 
quested by  defendants  and  giving  the  same  in  a  modified  form,  and  a 
rehearing  having  been  granted  by  said  court,  the  judgment  and  order 
were  affirmed  by  the  second  decision.  An  application  for  a  hearing  in 
this  court  was  then  granted. 

We  are  of  the  opinion  that  the  first  decision  of  the  district  court  of 
appeal  was  correct.  It  is  essential  to  a  proper  understanding  of  the 
question  presented  in  the  matter  of  said  instruction  that  a  statement 
be  made  as  to  some  of  the  facts. 

The  defendants  maintained  and  operated  an  electric  transmission 
line,  consisting  of  poles,  cross-arms,  wires  and  insulators,  along  certain 
highways  in  Yolo  County,  and  the  line  passed  the  "Van  Zee  Place" 
just  outside  the  city  of  Woodland.  In  the  summer  and  early  autumn 
of  the  year  1906  the  line  was  reconstructed  by  defendants,  new  insula- 
tors put  in  on  many  poles,  and  every  alternate  pole  removed,  making 
the  distance  between  poles  264  feet,  instead  of  132  feet,  which  was  the 
distance  prior  to  the  reconstruction.  At  the  time  of  this  work  the  "  Van 
Zee  Place"  was  occupied  by  one  L.  E.  Hutchings.  A  portion  of  this 
place  consisted  of  an  inclosed  parcel  of  land  fronting  on  the  road,  on 
which  was  a  house,  and  another  adjoining  inclosed  parcel  on  which  was 
a  barn.  The  land  inclosed  with  the  barn  was  known  as  the  barnyard 
or  corral.  The  land  inclosed  with  the  house  was  known  as  the  house- 
yard  and  old  vineyard.  The  \'ineyard  portion  fronted  on  the  road  and 
contained  some  ten  or  twelve  rows  of  vines,  varying,  according  to  the 
testimony  of  Mr.  Schwartz,  the  husband  of  plaintiff,  from  two  inches 
to  three  feet  in  height.  The  inclosed  portion  containing  the  vineyard 
was  not  used  by  Mr.  Hutchings  for  stock.    Some  time  in  November, 


SECT,  v.]      SCHWARTZ   V.    CALIFORNIA    GAS   <fc    ELECTRIC   CORP.  423 

1906,  plaintiff  leased  from  Mr.  Hutchings  the  two  parcels  of  land 
we  have  referred  to,  and  went  into  occupancy  thereof.     On  April  10, 

1907,  plaintiff's  husband  turned  the  horse  into  this  old  \ineyard  por- 
tion while  his  stall  was  being  cleaned.  A  few  minutes  later,  the  stall 
having  been  cleaned,  he  went  after  the  horse  to  take  him  back.  He 
testified:  "As  I  started  to  halter  him  he  bit  at  me  and  I  stepped  back. 
I  stepped  back  and  corrected  him  for  attempting  to  bite  me.  I  held 
the  halter  for  him  to  put  his  nose  in,  and  tlie  horse,  in  stepping  back  to 
put  his  nose  in  the  halter,  moved  back  and  came  in  contact  with  some- 
thing, which  I  found  afterwards  was  a  broken  insulator."  The  insu- 
lator was  similar  to  those  in  use  on  defendants'  line  at  the  time  the 
reconstruction  work  was  done,  some  of  which  were  then  removed. 
They  had  an  eleven-inch  porcelain  top,  shaped  something  like  a  saucer, 
and  a  glass  center  about  nine  inches  long,  and  weighed  about  twelve 
pounds.  Mr.  Schwartz  said  that  the  saucer  part  of  this  insulator  was 
whole  and  laid  next  to  the  ground.  The  result  of  the  contact  of  the 
horse  with  this  insulator,  the  glass  part  of  which  was  broken,  was,  ac- 
cording to  Mr.  Schwartz,  that  the  horse  was  severely  cut  on  the  right 
hind  foot  between  the  hoof  and  the  fetlock.  The  horse  was  a  stallion 
and  valuable  only  for  breeding  purposes,  and  there  was  testimony 
sufficient  to  sustain  a  conclusion  that  he  was  thereby  rendered  useless 
for  such  purposes.  There  was  testimony  given  by  one  William  Weight, 
who  was  over  eighty  years  of  age,  and  who  was  employed  by  Hutchings 
on  the  "Van  Zee  Place"  at  the  time  of  such  reconstruction  work  in 
the  summer  and  autumn  of  1906,  to  the  effect  that  he  saw  one  of  the 
men  engaged  in  such  work  drop  an  insulator  from  the  cross-arm  of  one  of 
the  poles  into  this  vineyard,  and  that  the  insulator  fell  into  the  vine- 
yard at  the  northwest  corner,  some  seven  or  eight  feet  from  the  fence. 
This  testimony  was  given  some  two  years  after  the  accident  to  the  horse. 
He  said  that  he  saw  the  insulator  in  the  vineyard  many  times  there- 
after, "passed  it  nearly  every  day,"  but  did  not  pick  it  up  because  it 
did  no  harm  there,  and  that  they  were  not  using  the  vineyard  for  stock. 
It  was  clearly  established  that  the  horse  was  injured  in  the  northwest 
corner  of  the  vineyard,  and  Mr.  Schwartz  said  that  the  insulator 
was  at  a  point  two  or  three  feet  from  the  north  fence  and  between  six 
and  ten  feet  from  the  west  fence,  which  was  the  road  fence.  Evidence 
introduced  by  the  defendants  was  very  clear  to  the  effect  that  at 
the  time  this  work  was  done  by  the  defendants,  the  nearest  pole  to 
the  northwest  corner  of  the  vineyard  on  one  side  was  sixty  feet  and  on 
the  other  side  seventy-two  feet.  Mr.  Hutchings,  then  and  for  many 
years  prior  occupant  of  the  place,  testified  in  effect  that  there  had 
been  no  change  in  the  poles  except  that  every  other  pole  was  taken 
out,  and  his  testimony  and  that  of  Mr.  Ashley,  taken  together,  is 
clearly  to  the  effect  already  stated.  This  evidence  was  in  no  way 
contradicted  except  in  so  far  its  it  was  inferentially  contradicted  by 
the  evidence  of  Mr.  Weight,  to  which  we  have  alreadv  referred. 


424      SCHWAETZ   V.    CALIFORNIA    GAS   &   ELECTRIC   CORP.       [CHAP.  IIL 


In  the  light  of  these  facts,  which  we  have  stated  as  strongly  in  favor 
of  plaintiff  as  the  record  warrants,  the  district  court  of  appeal  in  its 
first  opinion  declared  in  part  as  follows :  — 

"Many  points  are  made  for  a  reversal  of  the  judgment.  Most  of 
them  are  without  merit,  some  of  them  probably  involve  error  without 
prejudice,  but  one  necessitates,  as  we  view  it,  a  new  trial  of  the  action. 

"  Defendants  requested  the  court  to  instruct  the  jury  as  follows : 
'You  cannot  find  for  the  plaintiff  in  this  case  unless  you  believe  from 
the  evidence: 

"  1.  That  plaintiff's  horse  was  injured  by  an  insulator,  the  property 
of  defendants.  2.  That  the  employees  of  defendants  negligently 
placed  said  insulator  on  the  premises  where  it  is  claimed  said  horse  was 
injured  and  at  the  point  where  the  evidence  shoics  said  horse  was  in 
fact  injured.'  As  given  by  the  court  the  second  subdivision  was  modi- 
fied to  read  as  follows :  '  That  the  employees  of  defendants  negligently 
placed  or  permitted  said  insulator  to  remain  on  the  premises  where  it 
is  claimed  said  horse  was  injured,  and  at  a  point  where  the  evidence 
shores  some  injury  might  result.' 

"In  the  language  of  appellants:  'As  proposed,  this  instruction  lim- 
ited responsibility  to  the  placing  of  the  insulator  at  the  point  where  the 
horse  was  injured.  The  modification  made  the  defendants  liable  if 
they  placed  it  anywhere  on  the  premises.' 

"The  proposed  instruction  was  based  upon  the  theory  that  an  in- 
tervening, independent  agency  may  have  been  the  proximate  cause  of 
the  injury.  It  seems  plain,  that  if  appellants  carelessly  dropped  the  in- 
sulator upon  the  premises  and  did  not  remove  it  they  would  be  guilty 
of  negligence,  but  after  it  was  dropped  if  somebody  else  picked  it  up 
and  moved  it  to  this  spot  where  the  damage  was  done,  it  was  the  negli- 
gence of  the  latter  that  proximately  caused  the  injury. 

"  It  would  not  be  a  case  of  correlative  and  concurring  causes,  but  of 
proximate  and  remote  agencies  independent  of  each  other.  The  rule  is 
well  settled  that  an  injury  is  not  actionable  which  would  not  have  re- 
sulted from  the  act  of  negligence,  except  for  the  interposition  of  an 
independent  cause.  (Chicago  etc.  Ry.  Co.  v.  Elliott,  55  Fed.  949, 
[20  L.  R.  A.  582,  5  C.  C.  A.  347];  Cole  v.  German  Savings  and  Loan 
Society,  124  Fed.  115,  [63  L.  R.  A.  416,  59  C.  C.  A.  593];  Western 
Union  Tel.  Co.  v.  Schriver,  141  Fed.  550,  [4  L.  R.  A.  (N.  S.)  678,  72 
C.  C.  A.  596].) 

"  In  the  Cole  case,  it  appears  that  the  plaintiff  entered  and  passed 
along  a  hall  in  the  building  of  the  defendant  to  take  the  elevator,  the 
well  or  shaft  of  which  opened  into  the  hall.  A  boy,  who  was  a  stranger 
to  her  and  to  the  defendant,  hurried  past  her  in  the  hall,  pushed  the 
sliding  door  of  the  well  of  the  elevator,  which  was  open  from  one  to  ten 
inches,  back  as  far  as  it  would  go,  and  stepped  back.  The  plaintiff  sup- 
posed the  boy  was  the  operator  of  the  elevator,  and  stepped  in.  The 
elevator  was  at  an  upper  floor  in  charge  of  its  regular  operator,  and 


SECT,  v.]       SCHWARTZ   V.    CALIFORNIA   GAS    &    ELECTRIC   CORP.         425 

plaintiff  fell  to  the  bottom  of  the  well  and  was  injured.  The  hall  was 
so  dark  that  it  was  difficult,  but  not  impossible,  to  see  the  elevator 
when  it  was  at  the  lower  floor,  and  when  it  was  not  there  nothing  but 
darkness  was  visible  in  the  well.  It  was  held  that  the  negligent  acts 
and  omissions  of  the  defendant  were  not,  and  those  of  the  strange  boy 
were,  the  proximate  cause  of  the  injury.  '  The  latter  constituted 
an  independent  intervening  cause  which  interrupted  the  natural  se- 
quence of  events  between  the  negligence  of  the  defendant  and  the 
injury  of  the  plaintiff,  insulated  the  defendant's  negligence  from  the 
plaintiff's  hurt,  broke  the  causal  connection  between  them  and  produced 
the  injury.'  The  negligence  of  the  defendant  in  that  case,  as  stated  by  -  /,  _i 
the  court,  consisted  of  permitting  such  a  degree  of  darkness  in  the  hall,  ^  ^^  >  J^ 
of  allowing  boys  to  ride  upon  and  sometimes  operate  the  elevator,  of 
neglecting  to  provide  a  lock  for  the  door  which  would  prevent  any 
one  from  unlocking  it  from  the  outside  and  of  permitting  the  door  to 
stand  open  from  one  to  ten  inches.  Defendant  there  was  indeed  guilty  j  '-••^-  ^^  /"i_^ 
of  gross  negligence,  but  it  was  held  not  to  be  the  proximate  cause  of  the  / 

injury. 

"  In  Berry  v.  San  Francisco  &  N.  P.  R.  R.  Co.,  50  Cal.  435,  it  was  held 
that  the  injury  done  to  plaintiff's  wheat  by  the  hogs  of  third  persons 
was  not  the  direct  damage  resulting  from  the  trespass  of  defendant 
in  destroying  a  portion  of  plaintiff's  fences  by  reason  of  which  the  hogs 
obtained  access  to  said  premises. 

"In  Loftus  V.  De  Hail,  133  Cal.  214,  [65  Pac.  379],  the  action  was 
brought  to  recover  damages  for  injuries  sustained  by  the  plaintiff,  an 
infant  seven  years  of  age,  from  falling  into  a  cellar  of  defendants, 
situated  on  a  vacant  lot  in  the  city  of  Los  Angeles.  The  defendants 
were  the  owners  of  the  lot,  which  was  located  in  a  populous  and  thickly 
settled  quarter  of  the  city.  Upon  the  lot  had  stood  a  house,  which  had 
been  removed,  leaving  upon  the  premises  a  cellar  partially  filled  with 
debris.  The  premises  were  left  in  an  open  and  unguarded  condition. 
The  plaintiff  lived  in  the  neighborhood  of  the  lot,  and,  upon  the  day  of 
the  accident,  was  engaged  with  other  children  in  playing  around  the 
cellar,  and  while  so  engaged  was  by  her  younger  brother  pushed  into  the 
cellar,  sustaining  the  injuries  complained  of.  It  was  held  by  the  court 
that  his  act  was  the  proximate  cause  of  the  injury,  and  that  '  it  was 
not  in  her  play  and  as  part  of  her  play  and  in  ignorance  of  the  danger 
of  her  play,  but  she  was  injured  by  the  violence  of  her  little  brother  in 
a  matter  apart.'  The  foregoing  are  a  few  of  many  cases  illustrating 
the  op>eration  of  an  independent  proximate  cause  producing  injury,  and 
they  seem  to  be  in  harmony  with  the  principle  embodied  in  said  pro- 
posed instruction  here. 

"Of  course,  if  there  were  no  evidence  in  the  record  tending  to  sup- 
port said  theory  the  court's  action  would  be  adjudged  entirely  without 
prejudice.  While  there  was  no  direct  evidence  that  any  third  party 
moved  said  insulator,  circumstances  do  appear  from  which  a  rational 


426        SCHWAKTZ   V.    CALIFORNIA    GAS    &    ELECTRIC    CORP.      [CHAP.  III. 

inference  might  be  drawn  to  that  efiFect,  and  therefore  it  was  a 
proper  question  to  submit  to  the  jury.  The  only  witness  who  testi- 
fied that  he  saw  the  insulator  fall  from  the  pole  was  one  William 
"Weight,  an  old  man  past  eighty,  who  admitted  his  eyesight  was  bad. 
He  testified  that  he  was  employed  on  the  '  Van  Zee '  Place  during  the 
summer  and  forepart  of  the  fall  of  1906,  when  it  was  occupied  by  Lee 
Hutchings.  'During  that  time  men  worked  on  the  electric  pole  line. 
They  were  changing  insulators  and  putting  up  wires  and  one  of  the 
men  dropped  an  insulator  into  the  northwest  corner  of  the  \'ineyard. 
The  man  was  on  a  cross-bar  when  he  dropped  the  insulator,  which 
was  as  large  as  a  cuspidor.'  Other  evidence  shows  clearly  that  the  near- 
est pole  to  the  northwest  corner  of  the  vineyard  was  sixty  feet,  and  in 
another  direction  there  had  been  one  seventy -two  feet  from  the  corner. 
The  insulator  weighed  twelve  pounds  and  the  poles  were  thirty  feet 
high.  It  was,  therefore,  quite  a  probable  inference  that  within  the  eight 
or  nine  months  intervening  before  the  accident  some  other  party  moved 
the  insulator,  as  it  could  not  have  '  dropped  '  to  a  point  on  the  ground 
sixty  or  seventy  feet  from  the  foot  of  the  pole. 

"To  this  complaint  by  appellants  of  the  action  of  the  court  in  re- 
fusing said  instruction  the  only  answer  made  by  respondent  is  as  fol- 
lows: 'The  modification  of  instruction  18  was  proper  because  the  in- 
struction as  proposed  was  erroneous  in  that  it  was  an  instruction  as  to 
the  facts.  The  language  of  subdivision  2  of  the  instruction  was  a  straight 
statement  that  the  evidence  shows  that  the  horse  was  not  injured.' 
In  this  respondent  is  clearly  in  error.  The  instruction  is  altogether 
hypothetical,  it  does  not  assume  any  fact  as  proven,  but  states  what 
must  be  shown  to  justify  a  verdict  for  plaintiff.  The  point  seems  to  be 
a  vital  one  in  the  case  and  it  is  believed  that  the  defendants  were  en- 
titled to  the  instruction  and  for  this  reason  the  judgment  and  order  are 
reversed." 

Learned  coimsel  for  plaintiff  ably  and  earnestly  assailed  this  opinion 
and  the  consequent  judgment  of  reversal  in  their  petition  for  a  rehearing 
in  the  district  court  of  appeal,  and  in  their  brief  filed  subsequently  in 
this  court,  but  we  believe  that  it  correctly  disposes  of  this  appeal. 
Some  of  the  points  so  made  by  counsel  are  sufficiently  disposed  of 
by  such  opinion.  We  are  of  the  opinion  that  the  requested  instruction 
was  not  an  instruction  as  to  the  facts,  and  that  it  correctly  stated  the 
law  applicable  in  view  of  the  testimony.  We  are  satisfied  that  none  of 
the  instructions  given  the  jury  substantially  covered  the  subject  matter 
of  the  requested  instruction,  in  so  far  as  the  same  referred  to  the  ques- 
tion of  an  intervening,  independent  agency.  We  do  not  consider  Merrill 
V.  Los  Angeles  etc.  Co.,  158  C'al.  499,  [139  Am.  St.  Rep.  134,  111  Pac. 
534],  in  any  way  opposed  to  our  conclusion  herein. 

The  judgment  and  order  denying  a  new  trial  are  reversed. 

Mr.  Justice  Sloss,  deeming  himself  disqualified,  does  not  participate 
herein.  Rehearing  denied. 


SECT,  v.]  CLAKK   V.    CHAMBERS.  427 


CLARK  V.   CHAMBERS. 
High  Court  of  Justice,  Queen's  Bench  Division,  1878. 

[Reported  3  Q.  B.  D.  327.]  Um^'^JL 

CoCKBURN,  C.  J.  This  is  a  case  of  considerable  nicety,  and  which, 
so  far  as  the  precise  facts  are  concerned,  presents  itself  for  the  first 
time. 

The  defendant  is  in  the  occupation  of  premises  which  abut  on  a 
private  road  leading  to  certain  other  premises  as  well  as  to  his;  it 
consists  of  a  carriage  road  and  a  footway.  The  soil  of  both  is  the 
property  of  a  different  owner;  the  defendant  has  no  interest  in  it 
beyond  the  right  of  way  to  and  from  his  premises.  ^ 

The  defendant  uses  his  premises  as  a  place  where  athletic  sports  \MA/AA 

are  carried  on  by  persons  resorting  thereto  for  that  purpose  for  their  ^\ 

own  amusement.  His  customers  finding  themselves  annoyed  by  persons 
coming  along  the  road  in  question  in  carts  and  vehicles  and  stationing 
themselves  opposite  to  his  grounds  and  overlooking  the  sports,  the 
height  of  the  carts  and  vehicles  enabling  them  to  see  over  the  fence,  ' 
the  defendant  erected  a  barrier  across  the  road  for  the  purpose  of 
preventing  vehicles  from  getting  as  far  as  his  grounds. 

This  barrier  consisted  of  a  hurdle  set  up  lengthways  next  to  the  foot- 
path, then  two  wooden  barriers  armed  with  spikes,  commonly  called 
chevaux  de  frise,  then  there  was  left  an  open  space  through  which  a 
vehicle  could  pass;  then  came  another  large  hurdle  set  up  lengthways, 
which  blocked  up  the  rest  of  the  road.  At  ordinary  times  the  space 
between  the  two  di\dsions  of  the  barrier  was  left  open  for  vehicles  to 
pass  which  might  be  going  to  any  of  the  other  premises  to  which  the 
road  in  question  led.  But  at  the  times  when  the  sports  were  going  on,  a 
pole  attached  by  suitable  apparatus  was  carried  across  from  the  one 
part  of  the  barrier  to  the  other,  and  so  the  road  was  effectually  l^locked. 

Amongst  the  houses  and  grounds  to  which  this  private  road  led  was 
that  of  a  Mr.  Bruen.  On  the  evening  on  which  the  accident  which  gave 
rise  to  the  present  action  occurred  the  plaintiff,  who  occupied  premises 
in  the  immediate  neighbourhood,  accompanied  Mr.  Bruen,  by  the  in- 
vitation of  the  latter,  to  Bruen's  house.  It  was  extremely  dark,  but 
being  aware  of  the  barrier  and  the  opening  in  it,  they  found  the  ojiening, 
the  pole  not  being  set  across  it,  and  passed  through  it  in  safety;  but  on 

his  return,  later  in  the  evening,  the  plaintiff  was  not  equally  fortunate.  ^ j>/ 

It  appears  that,  in  the  course  of  that  day  or  the  day  pre\'ious,  some        I  "^  ^Ju 
one  had  removed  one  of  the  chevaux  de  frise  hurdles  from  the  place         I    \ 
where  it  had  stood,  and  had  placed  it  in  an  upright  position  across  the         j 
footpath.     Coming  back  along  the  middle  of  the  road,  the  plaintiff,'.--^^ 


V.  r\ 


428  CLARK    V.    CHAMBERS.  [CHAP.  Ill, 

feeling  his  way,  passed  safely  tlirough  the  opening  in  the  centre  of  the 
barrier;  having  done  which,  being  wholly  unaware,  it  being  much  too 
dark  to  see,  that  there  was  any  obstruction  on  the  footpath,  he  turned 
on  to  the  latter,  intending  to  walk  along  it  the  rest  of  the  way.  He 
had  advanced  only  two  or  three  steps  when  his  eye  came  into  collision 
^  with  one  of  the  spikes,  the  effect  of  which  was  that  the  eye  was  forced 
\^  out  of  its  socket.  It  did  not  appear  by  whom  the  chevaux  de  frise  hurdle 
had  been  thus  removed,  but  it  was  expressly  found  by  the  jury  that 
this  was  not  done  by  the  defendant  or  by  his  authority.  The  question 
is,  whether  the  defendant  can  be  held  liable  for  the  injury  thus  occa- 
■"  sioned.  It  is  admitted  that  what  the  defendant  did  in  erecting  this  bar- 
rier across  the  road  was  unauthorized  and  wrongful,  and  it  is  not  dis- 
■'  puted  that  the  plaintiff  was  lawfully  using  the  road.  There  is  no  ground 
for  imputing  to  him  any  negligence  contributing  to  the  accident. 
The  jury  have  expressly  found,  in  answer  to  a  question  put  to  them  by 
me,  that  the  use  of  the  chevaux  de  frise  in  the  road  was  dangerous  to 
the  safety  of  persons  using  it.  The  ground  of  defense  in  point  of  law 
taken  at  the  trial  and  on  the  argument  on  the  rule  was,  that,  although 
if  the  injury  had  resulted  from  the  use  of  the  chevaux  de  frise  hurdle 
as  placed  by  the  defendant  on  the  road,  the  defendant,  on  the  facts 
as  admitted  or  as  found  by  the  jury,  might  have  been  liable;  yet, 
as  the  immediate  cause  of  the  accident  was  not  the  act  of  the  defend- 
ant, but  that  of  the  person,  whoever  he  may  have  been,  who  re- 
moved the  spiked  hurdle  from  where  the  defendant  had  fixed  it  and 
placed  it  across  the  footway,  the  defendant  could  not  be  held  liable  for 
an  injury  resulting  from  the  act  oi  another.  On  the  part  of  the  plaintiff 
it  was  contended  that  as  the  act  of  the  defendant  in  placing  a  dangerous 
instrument  on  the  road  had  been  the  primary  cause  of  the  evil,  by 
affording  the  occasion  for  its  being  removed  and  placed  on  the  foot- 
path, and  so  causing  the  injury  to  the  plaintiff,  he  was  responsible  in 
law  for  the  consequences.  Numerous  authorities  were  cited  in  sup- 
port of  this  position.  The  first  is  the  case  of  Scott  i'.  Shepherd, 
3  Wils.  403;  2  W.  Bl.  892.  In  that  case  the  defendant  threw  a  lighted 
squib  into  a  market  house  where  several  persons  were  assembled.  It 
fell  upon  a  standing,  the  owner  of  which,  in  self-defence,  took  it  up 
and  threw  it  across  the  market  house.  It  fell  upon  another  standing, 
the  owner  of  which,  in  self-defence,  took  it  up  and  threw  it  to  another 
part  of  the  market  house,  and  in  its  course  it  struck  the  plaintiff,  and 
exploded  and  put  out  his  eye.  The  defendant  was  held  liable,  although 
without  the  intervention  of  a  third  person  the  squib  would  not  have  in 
jured  the  plaintiff. 

In  Dixon  o.  Bell,  5  M.  &  S.  198,  the  defendant,  ha\'ing  left  a  loaded 
gun  with  another  man,  sent  a  young  girl  to  fetch  it,  with  a  message  to 
the  man  in  whose  custody  it  was  to  remove  the  priming,  which  the 
latter,  as  he  thought,  did,  but,  as  it  turned  out,  did  not  do  effectually. 
The  girl  brought  it  home,  and,  thinking  that  the  priming  having  been 


II 


SECT,  v.]  CLARK   V.    CHAMBERS.  429 

removed  the  gun  could  not  go  off,  pointed  it  at  the  plaintiff's  son,  a 
child,  and  pulled  the  trigger.  The  gun  went  ofP  and  injured  the  child. 
The  defendant  was  held  liable,  "as  by  this  want  of  care,"  says  Lord 
EUenborough  —  that  is,  by  leaving  the  gun  without  drawing  the  charge 
or  seeing  that  the  priming  had  been  properly  removed  —  "  the  instru- 
ment was  left  in  a  state  capable  of  doing  mischief,  the  law  will  hold  the 
defendant  responsible.  It  is  a  hard  case,  undoubtedly;  but  I  think 
the  action  is  maintainable." 

In  Ilott  V.  Wilkes,  3  B.  &  A.  304  —  the  well-known  case  as  to  spring- 
guns —  it  became  unnecessary  to  determine  how  far  a  person  setting 
spring-guns  would  be  liable  to  a  person  injured  by  such  a  gun  going  off, 
even  though  such  person  were  a  trespasser,  inasmuch  as  the  plaintiff, 
ha\'ing  had  notice  that  spring-guns  were  set  in  a  particular  wood,  had 
voluntarily  exposed  himself  to  the  danger.  But  both  Mr.  Justice 
Bayley  and  Mr.  Justice  Holroyd  appear  to  have  thought  that  with- 
out such  notice  the  action  would  have  lain,  the  use  of  such  instruments 
being  unreasonably  disproportioned  to  the  end  to  be  obtained,  and 
dangerous  to  the  lives  of  persons  who  might  be  innocently  trespassing. 
Looking  to  their  language,  it  can  scarcely  be  doubted  that  if,  instead 
of  injuring  the  plaintifP,  the  gun  which  he  caused  to  go  off  had  struck  a 
person  passing  lawfully  along  a  path  leading  through  the  wood,  they 
would  have  held  the  defendant  liable. 

In  Jordin  v.  Crump,  8  M.  &  W.  782,  the  use  of  dog-spears  was 
held  not  illegal;  but  there  the  injury  done  to  the  plaintiff's  dog  was 
alone  in  question.  If  the  use  of  such  an  instrument  had  been  pro- 
ductive of  injury  to  a  human  being,  the  result  might  have  been  dif- 
ferent. 

In  Illidge  v.  Goodwin,  5  C.  &  P.  192,  the  defendant's  cart  and  horse 
were  left  standing  in  the  street  without  any  one  to  attend  to  them.  A 
person  passing  by  whipped  the  horse,  which  caused  it  to  back  the  cart 
against  the  plaintiff's  window.  It  was  urged  that  the  man  who  whipped 
the  horse,  and  not  the  defendant,  was  liable.  It  was  also  contended  that 
the  bad  management  of  the  plaintiff's  shopman  had  contributed  to  the 
accident.  But  Tindal,  C.  J.,  ruled  that,  even  if  this  were  believed,  it 
would  not  avail  as  a  defence.  "  If,"  he  says,  "  a  man  chooses  to  leave 
a  cart  standing  on  the  street,  he  must  take  the  risk  of  any  mischief 
that  may  be  done."  Lynch  v.  Nurdin,  1  Q.  B.  29,  is  a  still  more 
striking  case.  There,  as  in  the  former  case,  the  defendant's  cart  and 
horse  had  been  left  ^standing  unattended  in  the  street.  The  plaintiff, 
a  child  of  seven  years  of  age,  playing  in  the  street  with  other  boys,  was 
getting  into  the  cart  when  another  boy  made  the  horse  move  on. 
The  plaintiff  was  thrown  down,  and  the  wheel  of  the  cart  went  over  his 
leg  and  fractured  it.  A  considered  judgment  was  delivered  by  Lord 
Denraan.  He  says,  "  It  is  urged  that  the  mischief  was  not  produced  by 
the  mere  negligence  of  the  servant  as  asserted  in  the  declaration,  but  at 
most  by  that  negligence  in  combination  with  two  other  active  causes,  the 


430 


CLARK   V.    CHAMBERS. 


[chap.  III. 


advance  of  the  horse  in  consequence  of  his  being  excited  by  the  other 
boy,  and  the  plaintiff's  improper  conduct  in  mounting  the  cart  and 
committing  a  trespass  on  the  defendant's  chattel.  On  the  former  of 
these  two  causes  no  great  stress  was  laid,  and  I  do  not  apprehend  that 
it  can  be  necessary  to  dwell  on  it  at  any  length.  For  if  I  am  guilty  of 
negligence  in  leaving  anything  dangerous  where  I  know  it  to  be  ex- 
tremely probable  that  some  other  person  will  unjustifiably  set  it  in 
motion  to  the  injury  of  a  third,  and  if  that  injury  should  be  so  brought 
about,  I  presume  that  the  sufferer  might  have  redress  by  action  against 
both  or  either  of  the  two,  but  unquestionably  against  the  first."  And 
then,  by  way  of  illustration,  the  Chief  Justice  puts  the  case  of  a  game- 
keeper leaving  a  loaded  gun  against  the  wall  of  a  play-ground  where 
school  boys  were  at  play,  and  one  of  the  boys  in  play  letting  it  off  and 
wounding  another.  "I  think  it  will  not  be  doubted,"  says  Lord 
Denman,  "that  the  gamekeeper  must  answer  in  damages  to  the 
wounded  party."  "  This,"  he  adds,  "  might  possibly  be  assumed  as  clear 
in  principle,  but  there  is  also  the  authority  of  the  present  Chief  Justice 
of  the  Common  Pleas  in  its  support  in  Illidge  i'.  Goodwin."  It 
is  unnecessary  to  follow  the  judgment  in  the  consideration  of  the 
second  part  of  the  case,  namely,  whether  the  plaintiff,  ha\ang  con- 
tributed to  the  accident  by  getting  into  the  cart,  was  prevented  from 
recovering  in  the  action,  as  no  such  question  arises  here.  In  Daniels 
V.  Potter,  4  C.  &  P.  262,  the  defendants  had  a  cellar  opening  to  the 
street.  The  flap  of  the  cellar  had  been  set  back  while  the  defendants' 
men  were  lowering  casks  into  it,  as  the  plaintiff  contended,  without 
proper  care  having  been  taken  to  secure  it;  the  flap  fell  and  injured  the 
plaintiff.  The  defendant  maintained  that  the  flap  had  been  properly 
fastened,  but  also  set  up  as  a  defence  that  its  fall  had  been  caused  by 
some  children  placing  with  it.  But  the  only  question  left  to  the  jury 
by  Tindal,  C.  J.,  was  whether  the  defendant's  men  had  used  reasonable 
care  to  secure  the  flap.  His  direction  implies  that  in  that  case  onlj' 
would  the  intervention  of  a  third  party  causing  the  injury  be  a  defence. 

The  cases  of  Hughes  v.  Macfie,  2  H.  &  C.  744;  33  L.  J.  (Ex.)  177, 
and  Abbott  v.  Macfie,  2  H.  &  C.  744;  33  L.  J.  (Ex.)  177,  two  actions 
arising  out  of  the  same  circumstances,  and  tried  in  the  Passage  Court 
at  Liverpool,  though  at  variance  with  some  of  the  foregoing,  so  far  as 
relates  to  the  effect  on  the  plaintiff's  right  to  recover  where  his  own  act 
as  a  trespasser  has  contributed  to  the  injury  of  which  he  complains,  is 
in  accordance  with  them  as  respects  the  defendant's  liability  for  his 
own  act,  where  that  act  is  the  primary  cause,  though  the  act  of  another 
may  have  led  to  the  immediate  result. 

The  defendants  had  a  cellar  opening  to  the  street.  Their  men  had 
taken  up  the  flap  of  the  cellar  for  the  purpose  of  lowering  casks  into  it, 
and,  ha\dng  reared  it  against  the  wall  nearly  upright  with  its  lower 
face,  on  which  there  were  cross-bars,  towards  the  street,  had  gone  away. 
The  plaintiff  in  one  of  the  actions,  a  child  five  years  old,  got  upon  the 


SECT,  v.]  CLARK   V.    CHAMBERS.  431 

cross-bars  of  the  flap,  and  in  jumping  off  them  brought  down  the  flap 
on  himself  and  another  child,  the  plaintiff  in  the  other  action,  and 
both  were  injured.  It  was  held,  that  while  the  plaintiff  whose  act  had 
caused  the  flap  to  fall  could  not  recover,  the  other  plaintiff  who  had 
been  injured  could,  pro\'ided  he  had  not  been  playing  with  the  other 
so  as  to  be  a  joint  actor  with  him. 

Bird  V.  Holbrook,  4  Bing.  628,  is  another  striking  case,  as  there  the 
plaintiff  was  undoubtedly  a  trespasser.  The  defendant  being  the  owner 
of  a  garden,  which  was  at  some  distance  from  his  dwelling-house,  and 
which  was  subject  to  depredations,  had  set  in  it  without  notice  a  spring- 
gun  for  the  protection  of  his  property.  The  plaintiff,  who  was  not 
aware  that  a  spring-gun  was  set  in  the  garden  in  order  to  catch  a  pea- 
fowl, the  property  of  a  neighbour,  which  had  escaped  into  the  garden, 
got  over  the  wall,  and  his  foot  coming,  in  his  pursuit  of  the  bird,  into 
contact  with  the  wire  which  communicated  with  the  gun,  the  latter  went 
off  and  injured  him.  It  was  held,  though  his  own  act  had  been  the 
immediate  cause  of  the  gun  going  off,  yet  that  the  unlawful  act  of  the 
defendant  in  setting  it  rendered  the  latter  liable  for  the  consequences. 

In  the  course  of  the  discussion  a  similar  case  of  Jay  v.  Wliitfield, 
3  B.  &  Ad.  308,  at  p.  644,  was  mentioned  —  tried  before  Richards, 
C.  B.,  —  in  which  a  plaintiff  who  had  trespassed  upon  premises  in 
order  to  cut  a  stick  and  had  been  similarly  injured,  had  recovered 
substantial  damages,  and  no  attempt  had  been  made  to  disturb  the 
verdict. 

In  Hill  V.  New  River  Company,  9  B.  &  S.  308,  the  defendants  created 
a  nuisance  in  a  public  highway  by  allowing  a  stream  of  water  to  spout 
up  open  and  unfenced  in  the  road.  The  plaintiff's  horses  passing  along 
the  road  with  his  carriage  took  fright  at  the  water  thus  spouting  up,  and 
swerved  to  the  other  side  of  the  road.  It  so  happened  that  there  was  in 
the  road  an  open  ditch  or  cutting,  which  had  been  made  by  contractors 
who  were  constructing  a  sewer,  and  which  had  been  left  unfenced  and 
unguarded,  which  it  ought  not  to  have  been.  Into  tliis  ditch  or  cutting, 
owing  to  its  being  unfenced,  the  horses  fell  and  injured  themselves  and 
the.  carriage.  It  was  contended  that  the  remedy,  if  any,  was  against 
the  contractors;  but  it  was  held  that  the  plaintiff  was  entitled  to 
recover  against  the  company. 

In  Burrows  v.  March  Gas  and  Coke  Company,  Law  Rep.  7  Ex.  96,    /.  ' 
it  was  held  in  the  Exchequer  Chamber,  affirming  a  judgment  of  the  '  /  .    i  .'  . 

Court  of  Exchequer,  that  where,  through  a  breach  of  contract  by  the        '     ' 
defendants  in  not  serving  the  plaintiff  with  a  proper  pipe  to  convey  gas 
from  their  main  into  his  premises,  an  escape  of  gas  had  taken  place, 
whereupon  the  servant  of  a  gasfitter  at  work  on  the  premises  ha\nng  C^   Q  / 

gone  into  the  part  of  the  premises  where  the  escape  had  occurred,  with  ~  r  ■ 

a  lighted  candle,  and  examining  the  pipe  wnth  the  candle  in  his  hand,  '    '  '      '- 

an  explosion  took  place,  by  which  the  premises  were  injured,  the 
defendants  were  liable,  though  the  ex-plosion  had  been  immediately 


432  CLARK   V.    CHAMBERS.  [CHAP.   III. 

caused  by  the  imprudence  of  the  gasfitter's  man  in  examining  the  pipe 
with  a  lighted  candle  in  his  hand. 

In  Collins  v.  Middle  Level  Commissioners,  Law  Rep.  4  C.  P.  279, 
the  defendants  were  bound  under  an  Act  of  Parliament  to  construct  a 
cut  \\'ith  proper  walls,  gates,  and  sluices,  to  keep  out  the  waters  of  a 
tidal  river,  and  also  a  culvert  under  the  cut,  to  carry  off  the  drainage 
of  the  lands  lying  east  of  the  cut,  and  to  keep  the  same  open  at  all  times. 
In  consequence  of  the  defective  construction  of  the  gates  and  sluices, 
the  waters  of  the  river  flowed  into  the  cut,  and,  bursting  its  western 
bank,  flooded  the  adjoining  lands.  The  plaintiff  and  other  proprietors 
on  the  eastern  side  closed  the  culvert,  and  so  protected  their  lands;  but 
the  proprietors  on  the  western  side,  to  lessen  the  e\al  to  themselves, 
reopened  the  culvert,  and  so  increased  the  overflow  on  the  plaintiff's 
land,  and  caused  injury  to  it.  The  defendants  sought  to  ascribe  the 
injury  to  the  act  of  the  western  proprietors  in  remov-ing  the  obstruction 
which  those  on  the  other  side  had  placed  at  the  culvert.  But  it  was 
held  that  the  negligence  of  the  defendants  was  the  substantial  cause 
of  the  miscliief.  "The  defendants,"  says  Mr.  Justice  Montague  Smith, 
"  cannot  excuse  themselves  from  the  natural  consequences  of  their  neg- 
ligence by  reason  of  the  act,  whether  rightful  or  wrongful,  of  those 
who  removed  the  obstruction  placed  in  the  culvert  under  the  circum- 
stances found  in  this  case."  "The  primary  and  substantial  cause  of 
the  injury,"  says  ]Mr.  Justice  Brett,  "  was  the  negligence  of  the  defend- 
ants, and  it  is  not  competent  to  them  to  say  that  they  are  absolved 
from  the  consequences  of  their  wrongful  act  by  what  the  plaintiff  or 
some  one  else  did." — "I  cannot  see  how  the  defendants  can  excuse 
themselves  by  urging  that  the  plaintiff  was  prevented  by  other  wrong- 
doers from  preventing  a  part  of  the  injury." 

The  case  of  Harrison  v.  Great  Northern  Railway,  3  H.  &  C.  231;  33 
L.  J.  (Ex.)  266,  belongs  to  the  same  class.  The  defendants  were  bound 
under  an  Act  of  Parliament  to  maintain  a  delph  or  drain  with  banks  for 
carr\ang  off  water  for  the  protection  of  the  adjoining  lands.  At  the 
same  time  certain  commissioners,  appointed  under  an  Act  of  Parliament, 
were  bound  to  maintain  the  na\'igation  of  the  river  Witham,  with  which 
the  delph  communicated.  There  ha\'ing  been  an  extraordinary  fall  of 
rain,  the  water  in  the  delph  rose  nearly  to  the  height  of  its  banks,  when 
one  of  them  gave  way  and  caused  the  damage  of  which  the  plaintiff  com- 
plained. It  was  found  that  the  bank  of  the  delph  was  not  in  a  proper 
condition,  but  it  was  also  found,  and  it  was  on  this  that  the  defendants 
relied  as  a  defence,  that  the  breaking  of  the  bank  had  been  caused 
by  the  water  in  it  having  been  penned  back,  owing  to  the  neglect  of 
the  commissioners  to  maintain  in  a  proper  state  certain  works  which  it 
was  their  duty  to  keep  up  under  their  Act.  Nevertheless,  the  defend- 
ants were  held  liable. 

These  authorities  would  appear  to  be  sufficient  to  maintain  the 
plaintiff's  right  of  action  under  the  circumstances  of  this  case.     It 


SECT,  v.]  CLAKK    V.    CHAMBERS.  433 

must,  however,  be  admitted  that  in  one  or  two  recent  cases  the  Courts 
have  shewn  a  disposition  to  confine  the  Habihty  arising  from  unlawful 
acts,  neghgence,  or  omissions  of  duty  within  narrower  Hmits,  by  hold- 
ing a  defendant  liable  for  those  consequences  only  which  in  the  ordinary 
course  of  things  were  likely  to  arise,  and  which  might  therefore 
reasonably  be  expected  to  arise,  or  which  it  was  contemplated  by 
the  parties  might  arise,  from  such  acts,  negligence,  or  omissions. 
In  Greenland  v.  Chaplin,  5  Ex.  243,  at  p.  248,  Pollock,  C.  B.,  says:  "I 
entertain  considerable  doubt  whether  a  person  who  is  guilty  of  negli- 
gence is  responsible  for  all  the  consequences  which  may  under  any 
circumstances  arise,  and  in  respect  of  mischief  which  could  by  no  pos- 
sibility have  been  foreseen,  and  which  no  reasonable  person  would 
have  anticipated."  Acting  on  this  principle,  the  Court  of  Common 
Pleas,  in  a  recent  case  of  Sharp  v.  Powell,  Law  Rep.  7  C.  P.  253,  held 
that  the  action  would  not  lie  where  the  injury,  though  arising  from  the 
unlawful  act  of  the  defendant,  could  not  have  been  reasonably  expected 
to  follow  from  it.  The  defendant  had,  contrary  to  the  provisions  of  the 
Police  Act,  washed  a  van  in  the  street,  and  suffered  the  water  used  for 
the  purpose  to  flow  down  a  gutter  towards  a  sewer  at  some  little  dis- 
tance. The  weather  being  frosty,  a  grating,  through  which  water  flow- 
ing down  the  gutter  passed  into  the  sewer,  had  become  frozen  over, 
in  consequence  of  which  the  water  sent  down  by  the  defendant, 
instead  of  passing  into  the  sewer,  spread  over  the  street  and  became 
frozen,  rendering  the  street  slippery.  The  plaintiff's  horse  coming  along 
fell  in  consequence,  and  was  injured.  It  was  held  that  as  there  was 
nothing  to  show  that  the  defendant  was  aware  of  the  obstruction  of 
the  grating,  and  as  the  stoppage  of  the  water  was  not  the  necessary  or 
probable  consequence  of  the  defendant's  act,  he  was  not  responsible  for 
what  had  happened. 

Bovill,  C.  J.,  there  says:  "No  doubt,  one  who  commits  a  wrong- 
ful act  is  responsible  for  the  ordinary  consequences  which  are  likely 
to  result  therefrom,  but,  generally  speaking,  he  is  not  liable  for  damage 
which  is  not  the  natural  or  orchnary  consequence  of  such  act,  unless  it 
be  shewn  that  he  knows,  or  has  reasonable  means  of  knowing,  that 
consequences  not  usually  resulting  from  the  act  are,  by  reason  of  some 
existing  cause,  likely  to  intervene  so  as  to  occasion  damage  to  a  third 
person.  Where  there  is  no  reason  to  expect  it,  and  no  knowledge  in 
the  person  doing  the  wrongful  act  that  such  a  state  of  things  exists 
as  to  render  the  damage  probable,  if  injury  does  result  to  a  third  person 
it  is  generally  considered  that  the  wrongful  act  is  not  the  proximate 
cause  of  the  injury  so  as  to  render  the  wrongdoer  liable  to  an  action." 
And  Grove,  J.,  said:  "I  am  entirely  of  the  same  opinion.  I  think 
the  act  of  the  defendant  was  not  the  ordinary  or  proximate  cause 
of  the  damage  to  the  plaintiff's  horse,  or  wnthin  the  ordinary  con- 
sequences which  the  defendant  may  be  presumed  to  have  contem- 
plated, or  for  which  he  is  responsible.     The  expression,  the  'natural' 


M 


J. 


434  CLARK   V.    CHAMBERS.  [CHAP.  III. 

consequence,  which  has  been  used  in  so  many  cases,  and  which  I  myself 
have  no  doubt  often  used,  by  no  means  conveys  to  the  mind  an  ade- 
quate notion  of  what  is  meant;  'probable'  would  perhaps  be  a  better 
expression.  If  on  the  present  occasion  the  water  had  been  allowed  to 
accumulate  round  the  spot  where  the  washing  of  the  van  took  place, 
and  had  there  frozen  obviously  within  the  sight  of  the  defendant,  and 
the  plaintiff's  horse  had  fallen  there,  I  should  have  been  inclined  to 
think  that  the  defendant  would  have  been  responsible  for  the  conse- 
quences which  had  resulted."  And  Mr.  Justice  Keating  said:  "The 
damage  did  not  immediately  flow  from  the  wrongful  act  of  the  defend- 
ant, nor  was  such  a  probable  or  likely  result  as  to  make  him  responsible 
for  it.  The  natural  consequence,  if  that  be  a  correct  expression,  of  the 
WTongful  act  of  the  defendant  would  have  been  that  the  water  would  un- 
der ordinary  circumstances  have  flowed  along  the  gutter  or  channel,  and 
so  down  the  grating  to  the  sewer.  The  stoppage  and  accumulation 
of  the  water  was  caused  by  ice  or  other  obstruction  at  the  drain,  not 
shewn  to  have  been  known  to  the  defendant,  and  for  which  he  was  in  no 
degree  responsible.  That  being  so,  it  would  ob\-iousl3^  be  unreasonable 
to  trace  the  damage  indirectly  back  to  the  defendant." 

^Ye  acquiesce  in  the  doctrine  thus  laid  down  as  applicable  to  the  cir- 
cumstances of  the  particular  case,  but  we  doubt  its  applicability  to 
the  present,  which  appears  to  us  to  come  within  the  principle  of  Scott 
V.  Shepherd  and  Dixon  v.  Bell,  and  the  other  cases  to  which  we 
have  referred.  At  the  same  time,  it  appears  to  us  that  the  case  before 
us  will  stand  the  test  thus  said  to  be  the  true  one.  For  a  man  who 
unlawfully  places  an  obstruction  across  either  a  public  or  private 
way  may  anticipate  the  removal  of  the  obstruction,  by  some  one  entitled 
to  use  the  way,  as  a  thing  likely  to  happen ;  and  if  this  should  be  done, 
the  probability  is  that  the  obstruction  so  removed  will,  instead  of  being 
carried  away  altogether,  be  placed  somewhere  near;  thus,  if  the  obstruc- 
tion be  to  the  carriageway,  it  will  very  likely  be  placed,  as  was  the  case 
here,  on  the  footpath.  If  the  obstruction  be  a  dangerous  one,  whereso- 
ever placed,  it  may,  as  was  the  case  here,  become  a  source  of  damage, 
from  which,  should  injury  to  an  innocent  party  occur,  the  original 
author  of  the  mischief  should  be  held  responsible.  Moreover,  we  are 
of  opinion  that,  if  a  person  places  a  dangerous  obstruction  in  a  high- 
way, or  in  a  private  road,  over  which  persons  have  a  right  of  way,  he 
is  bound  to  take  all  necessary  precaution  to  protect  persons  exercising 
their  right  of  way,  and  that  if  he  neglects  to  do  so  he  is  liable  for  the 
consequences.  It  is  unnecessary  to  consider  how  the  matter  would  have 
stood  had  the  plaintiff  been  a  trespasser.  The  case  of  Mangan  v. 
Atterton,  4  H.  &  C.  388;  Law  Rep.  1  Ex.  239,  was  cited  before  us  as 
a  strong  authority  in  favor  of  the  defendant.  The  defendant  had 
there  exposed  in  a  public  market-place  a  machine  for  crushing  oilcake 
without  its  being  thrown  out  of  gear,  or  the  handle  being  fastened,  or 
any  person  having  the  care  of  it.    The  plaintiff,  a  boy  of  four  years  of 


SECT.  V.J  BELLING   V.   COLUMBUS   CONSTKUCTION   CO.  435 

age,  returning  from  school  wath  his  brother,  a  boy  of  seven,  and  some 

other  boys,  stopped  at  the  machine.     One  of  the  boys  began  to  turn 

the  handle;   the  plaintiff,  at  the  suggestion  of  his  Ijrother,  placed  his 

hand  on  the  cogs  of  the  wheels,  and  the  machine  being  set  in  motion, 

three  of  his  fingers  were  crushed.      It  was    held   by   the   Court  of 

Exchequer  that  the  defendant  was  not  liable,  first,  because  there  was 

no  negligence  on  the  part  of  the  defendant,  or,  if  there  was  negligence, 

it  was  too  remote ;  and  secondly,  because  the  injury  was  caused  by  the 

act  of   the  boy  who  turned  the  handle,  and  of  the  plaintiff  himself, 

who  was  a  trespasser.      With  the  latter  ground  of  the  decision  we 

have  in  the  present  case  nothing  to  do ;    otherwise  we  should  have  to 

consider  whether  it  should  prevail  against  the  cases  cited,  with  which 

it  is  ob^•iously  in  conflict.      If  the  decision  as  to  negligence  is  in  con-  -u^ 

flict  with  our  judgment  in  tliis  case,  we  can  only  say  we  do  not  acquiesce 

innt.     It  appears  to  us  that  a  man  who  leaves  in  a  public  place,  along 

which  persons,  and  amongst  them  children,  have  to  pass,  a  dangerous 

machine  which  may  be  fatal  to  any  one  who  touches  it,  without  any 

precaution  against  mischief,  is  not  only  guilty  of  negligence,  but  of  ^''»'»Ww»l 

negligence  of  a  ver}^  reprehensible  character,  and  not  the  less  so  because     .^.    .    . 

the  imprudent  and  unauthorized  act  of  another  may  be  necessary  to 

realize  the  mischief  to  which  the  unlawful   act  or  negligence  of  the 

defendant  has  given  occasion.     But  be  this  as  it  may,  the  case  cannot 

govern   the  present.     For   the   decision  proceeded  expressly  on  the 

ground  that  there  had  been  no  default  in  the  defendant ;  here  it  cannot 

be  disputed  that  the  act  of  the  defendant  was  unlawful. 

On  the  whole,  we  are  of  opinion,  both  on  principle  and  authority, 
that  the  plaintiff  is  entitled  to  our  judgment. 

Judgment  for  the  -plaintiff} 


n 


BELLING  V.  COLUMBUS  CONSTRUCTION  CO. 
Supreme  Judicial  Court  of  Massachusetts,  1905. 

[Reported  188  Mass.  430.] 

Barker,  J.  The  plaintiff  procured  Italian  laborers  for  the  ser\ace 
of  the  defendant,  a  corporation  engaged  in  the  construction  of  a  public 
work  at  Weston.  He  had  erected  a  temporary  building  on  land  of  another 
person  near  the  locahty  of  the  work.  In  a  part  of  this  building  he  kept 
goods  which  by  an  agent  he  sold  to  the  laborers.  The  rest  of  the  building 
was  fitted  with  bunks  for  sleeping  places  and  was  occupied  by  the  laborers 
for  the  use  of  which  they  paid  him.    When  cold  weather  came  they  de- 

»  See  also  Howe  v.  Ohmart,  7  Ind.  App.  .32,  33  N.  E.  466.  —  Ed. 


436  BELLING   V.    COLUMBUS    CONSTRUCTION    CO.  [CHAP.  Ill- 

manded  a  fire  to  heat  their  quarters,  and  threatened  to  quit  work  unless 
a  stove  and  fuel  were  furnished. 

One  Keefe  was  the  defendant's  foreman.  He  requested  the  plain- 
tiff's agent  to  pro\'ide  a  stove  to  keep  the  laborers  comfortable,  and  the 
agent  promised  that  he  would  \\Tite  to  the  plaintiff  and  when  he  heard 
from  him  would  get  a  stove.  Some  days  later  Keefe  told  the  agent  that 
unless  the  stove  was  put  in  he  Keefe  himself  would  order  it,  give  it  to  the 
men  and  let  them  set  it  up.  To  this  the  agent  objected  and  told  Keefe 
that  he  had  no  right  to  put  in  a  stove  without  the  permission  of  the  plain- 
tiff. Finally  Keefe  procured  a  stove  and  had  it  set  up  by  a  carpenter 
and  thereafter  furnished  the  laborers  with  coal  and  wood  and  they  con- 
stantly kept  up  a  fire,  themselves  making  the  fires  and  helping  themselves 
to  the  defendant's  wood  and  coal.  There  was  no  zinc  under  the  stove  and 
the  floor  of  the  building  was  of  wood  with  wide  cracks  between  the 
boards. 

About  one  hundred  feet  away  the  defendant  had  a  storehouse  in 
which  barrels  of  oil  and  gasoline  were  kept  but  not  under  lock  and  key, 
and  to  which  the  laborers  had  access  for  the  purpose  of  filling  torches 
which  they  used  to  give  light  by  which  to  work  in  a  tunnel.  The  laborers 
who  built  the  fires  frequently  helped  themselves  to  the  gasohne  and  used 
it  in  kindhng  fires  in  the  stove.  Keefe  became  aware  of  this  and  called 
the  attention  of  the  agent  to  it  and  told  him  he  must  stop  it,  but  did  noth- 
ing to  secure  the  gasohne,  although  he  notified  the  employee  in  charge 
of  the  gasoline  to  prevent  the  laborers  from  getting  it  to  use  in  the  stove. 
The  plaintiff's  agent  knew  that  the  men  were  lighting  the  fires  with  the 
gasoline  but  it  did  not  appear  that  he  tried  to  prevent  its  use. 

Some  three  weeks  after  the  stove  had  been  set  up,  as  a  laborer 
was  kindling  the  fire,  there  was  an  explosion  of  gasoline;  a  few 
drops  fell  on  the  floor  and  a  fire  ensued  which  consumed  the 
building  and   the  plaintiff's  goods   therein. 

The  case  was  sent  to  an  auditor  who  found  that  the  loss  caused  to  the 
plaintiff  by  the  fire  was  $1,622.64,  but  after  stating  in  his  report  that  and 
other  facts,  found  for  the  defendant.  Thereafter  the  case  was  tried  by 
a  judge  of  the  Superior  Court  without  a  jury.  The  auditor's  report  was 
read.  The  defendant  admitted  that  the  plaintiff  himself  was  in  New  York, 
continuously  from  November  5  to  No\-eml>er  IS,  the  fire  ha\ing  occurred 
on  November  22.  The  plaintiff  testified  to  his  whereabouts  from  Novem- 
ber 18  to  November  23,  and  his  e^^dence  tended  to  show  that  he  was  not 
at  Weston  after  the  stove  was  set  up  and  before  the  fire.  The  auditor 
having  stated  in  his  report  that  after  the  stove  was  set  up  Keefe  had  an 
inter\-iew  with  the  plaintiff  at  which  he  informed  the  plaintiff  that 
repeated  efforts  had  been  made  to  get  a  stove  for  the  men  and  had  stated 
to  him  what  action  he  had  taken  in  tiie  matter  the  plaintiff  said  "it  was 
all  right"  and  having  also  reported  that  the  plaintiff  must  have  known 
that  the  stove  had  been  set  up  and  must  have  seen  it,  the  plaintiff  fur- 
ther testified  that  he  never  had  any  conversation  with  Keefe  about  the 


II 


SECT,  v.]  BELLING   V.   COLUMBUS    CONSTRUCTION    CO.  437 

stove.  This  with  the  auditor's  report  was  all  the  material  e\'idence 
at  the  trial.  The  presiding  judge  found  for  the  defendant  and  reported 
the  case  for  the  determination  of  this  court. 

It  is  plain  that  from  the  auditor's  report  as  evidence,  notwithstanding 
the  defendant's  admission  at  the  trial  that  the  plaintiff  was  in  New 
York  from  the  fifth  to  the  eighteenth  of  November  and  the  plaintiff's 
testimony  that  he  never  had  any  conversation  with  Keefe  about  the 
stove,  the  judge  may  have  found  that  the  plaintiff  knew  that  the  stove 
had  been  put  in  and  had  assented  that  Keefe's  actions  in  the  matter 
were  satisfactory  to  him.  This  of  itself  would  seem  to  be  enough  to  re- 
quire us  to  order  judgment  to  be  entered  for  the  defendant  on  the  finding 
in  its  favor. 

But  assuming  that  Keefe's  act  in  putting  in  the  stove  was  an  uncon- 
doned trespass  a  majority  of  the  court  are  of  opinion  that  the  plaintiff 
cannot  recover.  The  putting  in  of  the  stove  for  the  use  of  the  laborers 
did  not  of  itself  cause  the  destruction  by  fire  of  the  plaintiflP's  building 
and  goods.  The  possibility  that  the  laborers  in  using  the  stove  might 
neghgently  set  the  building  on  fire  was  too  remote  a  contingency  to 
render  the  defendant  liable  for  it  as  a  natural  consequence  of  the  trespass. 
See  Hawks  v.  Locke,  1.39  Mass.  20.5,  208,  and  cases  cited. 

Nor  would  the  facts  that  the  defendant  kept  gasoline  in  barrels  in 
a  storehouse  one  hundred  feet  away  and  not  under  lock  and  key,  and  that 
the  laborers  T\ithout  right  helped  themselves  to  the  gasoline  and  by  negli- 
gently using  it  burned  the  building  and  goods,  make  the  defendant  re- 
sponsible. .A  wrongful  act  of  the  laborers  against  which  Keefe  had  pro- 
vided by  his  warning  to  the  plaintiff's  agent,  as  well  as  by  his  orders  to  the 
3e?endant's  employee  in  charge  of  the  storehouse,  and  the  subsequent 
negligence  of  the  laborers  themselves  in  using  the  misappropriated  gaso- 
Hne  both  intervened  between  the  keeping  of  the  gasoline  in  an  unlocked 
storehouse  and  the  loss  to  the  plaintiff.  It  was  not  under  all  the  circum- 
stances imperative  upon  the  judge  to  find  that  it  was  negligence  on  the 
part  of  the  defendant  to  keep  gasoline  in  an  unlocked  storehouse.  Nor, 
if  he  found  that  so  to  keep  it  was  wanting  in  due  care,  was  it  imperati^•e 
upon  him  to  find  that  according  to  the  usual  experience  of  mankind  the 
taking  of  the  gasoline  and  its  negligent  use  by  the  laborers  ought  to  have 
been  anticipated  as  probable.  Stone  v.  Boston  &  Albany  Railroad,  171 
Mass.  536;  Glassey  v.  Worcester  Consohdated  Street  Railway,  185 
Mass.  315. 

It  is  not  contended  that  the  laborers  when  kindhng  the  fire  were  acting 
within  the  scope  of  their  employment  as  servants  of  the  defendant. 

Judgment  for  the  defendant  on  the  finding} 

^  See  also  Cuff  v.  Newark  R.  R.,  35  N.  J.  L.  17.  —  Ed. 


438  HARRISON   V.   BERKELEY.  [CHAP.  III. 


HARRISON  V.  BERKELEY. 
CouET  OF  Appeals,  South  Carolina,  1847. 

[Reported  1  Strob.  Law,  525.] 

The  following  is  the  report  of  the  presiding  judge: 

This  was  an  action  of  trespass  on  the  case,  in  which  the  plaintiff  sought 
to  recover  damages,  for  that  the  defendant,  being  a  shop-keeper,  in  \\o- 
lation  of  the  statute  on  the  subject,  and  to  the  wrong  of  the  plaintiff, 
sold  and  dehvered  ardent  spirits  to  Bob,  a  slave  of  the  plaintiff,  by  means 
whereof  the  said  slave  became  intoxicated,  and  died. 

It  appeared  that  on  the  24th  day  of  December,  1845,  Bob,  being  pa- 
troon  of  one  of  the  plaintiff's  boats,  on  his  way  from  Charleston,  went 
into  the  shop  of  defendant  in  Camden,  and  there  received  a  gallon  jug 
and  a  quart  bottle  of  whiskey,  and  started  with  them  in  the  afternoon, 
to  convey  to  his  master  in  Fairfield,  across  the  Wateree,  intelligence  of 
the  boat's  arrival.  Bob  drank  none  at  the  shop,  but  drank  repeatedly 
from  the  bottle  before  he  reached  the  ri\'er,  at  the  ferry,  and  afterwards; 
fell  down  in  the  road  repeatedly;  fell  into  a  creek,  in  which  he  would 
have  been  drowned,  but  for  the  aid  of  some  white  men  then  in  his  company; 
and  soon  afterwards,  at  the  fork  of  the  roads,  proceeded  alone,  staggering. 
He  was  clad  in  homespun,  and  had  a  bundle,  besides  the  jug,  on  his  back. 
The  night  was  misty  and  somewhat  cold.  He  called  at  a  house  and  got 
fire,  returned  and  went  again.  Next  morning  he  was  found  dead  near 
the  house  where  he  had  called;  the  jug  of  whiskey  full  and  corked  near 
him,  the  bottle  not  to  be  seen;  and  upon  movement  of  his  body,  a  fluid 
smelling  like  whiskey  flowed  from  his  mouth.  A  physician  examined  his 
body  upon  the  inquest,  but  could  discover  no  external  injury;  and  from 
the  want  of  rigidity  in  the  muscles  and  other  appearances,  had  no  doubt 
that  he  died  of  di-unkenness  and  exposure. 

Wardlaw,  J.  delivered  the  opinion  of  the  court. 

This  action  is  novel  in  the  instance,  but  that  is  no  objection  to  it,  if 
it  be  not  new  in  principle.  The  law  endures  no  injury,  from  which 
damage  has  ensued,  without  some  remedy;  but  directs  the  applica- 
tion of  principles  already  established,  to  every  new  combination  of  cir- 
cumstances that  may  be  presented  for  decision. 

It  has,  however,  been  urged  here  again,  as  it  was  on  the  circuit,  that  ad- 
mitting everything  which  the  plaintiff  has  alleged,  he  has  presented 
either  a  case  of  damage  without  legal  injury,  or  a  case  of  injury  without 
legal  damage. 

First.  Damage  without  injury.  It  is  said,  that  the  act  of  selhng  or 
giving  whiskey  to  the  slave,  Bob,  was  not  in  itself  a  wrong  to  the  plain- 


SECT,  v.]  HAKEISON   V.  BERKELEY.  439 

tiff,  but  was  only  a  \'iolation  of  a  penal  statute,  which  has  imposed  upon 
such  acts  penalties,  to  be  recovered  by  indictment;  and  that,  therefore, 
no  action  by  the  plaintiff  lies,  nor  any  remedy  but  the  indictment  pre- 
scribed by  the  statute. 

The  wrong,  for  which  an  action  of  trespass  on  the  case  hes,  may  be 
either  an  unlawful  act,  or  a  lawful  act  done  under  circumstances  which 
render  it  wrongful  —  any  act  done  or  omitted,  contrary  to  the  general 
obUgation  of  the  law,  or  the  particular  rights  and  duties  of  the  parties. 
It  might  not  be  difficult  to  distinguish  between  the  selling,  or  gi\'ing  of 
spirituous  liquor  to  a  slave,  and  the  fair  selling  to  a  slave  of  an  article 
which  could  not  be  expected  to  produce  harm;  and  to  show  that,  inde- 
pendent of  any  express  statutory  prohibition,  the  former  act  is  so  con- 
trary to  the  rights  of  the  master,  and  to  the  duties  imposed  upon  other 
persons  in  a  slave-holding  community,  that  the  person  who  does  it 
without  special  matter  of  excuse,  subjects  himself  to  liability  for  all  the 
legal  damage  that  may  thence  ensue,  in  like  manner  as  if  he  had  care- 
lessly or  wantonly  placed  noxious  food  wnthin  the  reach  of  domestic 
animals.  But  this  case  may  be  rested  where  the  plaintiff  left  it.  Our 
statutes,  time  after  time,  have  subjected  him,  who  sells  to  a  slave  any 
article  without  license,  to  fine  and  imprisonment  upon  his  conviction 
after  indictment;  and  the  last  statute  on  the  subject  pro\ides  especially 
for  the  punishment,  upon  con\-iction  after  indictment,  of  liim,  who  sells 
or  gives  spirituous  liquor  to  a  slave.  No  ex-press  prohibition  is  contained 
in  either  of  the  statutes,  but  the  penalties  necessarily  imply  a  prohibition, 
and  make  the  thing  prohibited,  unlawful;  (10  Co.  75).  For  the  injury 
to  the  pubhc,  the  only  remedy  is  that  pro\'ided  by  the  statute  —  indict- 
ment; but  as  in  case  of  a  nuisance  to  the  whole  community,  if  any  per- 
son has  suffered  a  particular  damage  be\'ond  that  suffered  by  the  public, 
he  may  maintain  an  action  in  respect  thereof,  (2  Ld.  Ray.  985) ;  so  in  case 
of  a  misdemeanor  punishable  by  statute,  a  party  grieved  is  entitled  to 
his  action  for  the  particular  damage  done  to  liim  by  reason  of  the  un- 
lawful   act. 

Second.  We  come  then  to  the  main  ground  assumed  in  the  defence  — 
that  no  legal  damage  followed  the  injury,  but  that  which  was  shown 
was  too  remote  —  not  such  a  consequence  of  the  injury  as  the  law  will 
notice. 

It  would  be  vain  to  attempt  to  define  with  precision,  the  terms  which 
have  been  used  on  this  subject,  or  to  lay  down  any  general  rules,  by  which 
consequences  that  shall  be  answered  for,  and  those  which  are  too  remote 
for  consideration,  may  be  always  distinguished.  But  we  will  endea\-or, 
without  dwelling  on  particular  cases,  to  deduce  from  the  general  course 
of  decision  on  this  point,  so  much  as  may  show  that  the  instructions 
given  were  sufficiently  favorable  for  the  defendant,  and  that  verdict  is 
conformable  to  law. 

We  are  troubled  here  with  no  distinctions  between  loss  sustained  and 
gain  prevented;  nor  with  any  between  cases  which  have  been  aggra- 


440  HARRISON   V.   BERKELEY.  [CHAP.  III. 

vated  by  evil  motive,  and  those  which  have  not  been:  for  the  plaintiff 
here  has  chiimed  only  compensation  for  his  actual  loss;  and  the  defend- 
ant may  be  regarded  as  the  jury  were  instructed  to  regard  him  —  that  is, 
as  one  who,  with  no  particular  e\'il  purpose  or  ill-\\ill  towards  master 
or  slave,  has  A-iolated  the  law  only  for  his  own  gain. 

A  distinction,  however,  is  to  be  observed  between  cases  where  the 
damage  ensues,  whilst  the  injurious  act  is  continued  in  operation  and  force, 
and  those  where  the  damage  follows,  after  the  act  has  ceased.  In  the 
former  class,  were  the  cases  of  Wright  &  Gray,  (2  Bay,  464)  and  all  the 
cases  which  have  been  cited,  or  supposed,  of  slaves  put  without  permis- 
sion of  the  owners  on  race-horses,  in  steam-boats,  or  on  railroads  — 
those  of  property  injured  during  a  deviation  from  the  course  which  was 
prescribed  concerning  it,  (6  Bing.  716)  and  in  general  all,  where  unex- 
pected damage  was  done,  whilst  an  unauthorized  interference  with  anoth- 
er's rights  lasted.  Here  it  is  usually  of  small  moment  to  inquire,  whether 
the  damage  was  the  natural  consequence  of  the  injury,  because  the 
immediate  connexion  between  the  wrongful  act,  and  the  damage  sus- 
tained, shows  that  the  damage,  however  extraordinary,  has  actually 
resulted  directly  from  the  injury.  But  in  the  latter  class,  to  which  the 
case  before  us  must  be  assigned,  the  connexion  is  not  immediate  between 
the  injury  and  the  consequences;  and  it  becomes  indispensable  to  dis- 
criminate in  some  way  between  the  various  consequences  that  in  some 
sense  may  be  said  to  proceed  from  the  act,  for  all  of  them  carmot  con- 
stitute legal  damage. 

Every  incident  will,  when  carefully  examined,  be  found  to  be  the  result 
of  combined  causes,  and  to  be  itself  one  of  various  causes  which  pro- 
duce other  events.  Accident  or  design  may  disturb  the  ordinary  action 
of  causes,  and  produce  unlooked  for  results.  It  is  easy  to  imagine  some 
act  of  tri\ial  misconduct  or  slight  negligence,  which  shall  do  no  dii-ect 
harm,  but  set  in  motion  some  second  agent  that  shall  move  a  third,  and 
so  on,  until  the  most  disastrous  consequences  shall  ensue.  The  first 
wrongdoer,  unfortunate  rather  than  seriously  blameable,  cannot  be 
made  answerable  for  all  of  these  consequences.  He  shall  not  answer 
for  those  which  the  party  grieved  has  contributed  by  his  own  blameable 
negligence  or  wrong  to  produce,  or  for  any  which  such  party,  by  proper 
diligence,  might  have  prevented.  (Com.  Dig.  action  on  the  case,  134; 
11  East.  60;  2  Taunt.  314;  7  Pick.  284.)  But  this  is  a  very  insufficient 
restriction ;  outside  of  it  would  often  be  found  a  long  chain  of  consequence 
upon  consequence.  Only  the  proximate  consequence  shall  be  answered 
for.  (2  Greenleaf  Ev.  210,  and  cases  there  cited.)  The  difficulty  is  to 
determine  what  shall  come  mthin  this  designation.  The  next  conse- 
quence only  is  not  meant,  whether  we  intend  thereby  the  direct  and  im- 
mediate result  of  the  injurious  act,  or  the  first  consequence  of  that  result. 
What  either  of  these  would  be  pronounced  to  be,  would  often  depend 
upon  the  power  of  the  microscope,  with  which  we  should  regard  the 
affair.    Various  cases  shew  that  in  search  of  the  proximate  consequences 


SECT,  v.]  HAKRISON    V.   BERKELEY.  441 

the  chain  has  been  followed  for  a  considerable  distance,  but  not  without 
Hmit,  or  to  a  remote  point.  (8  Taunt.  535;  Peak's  cases,  205.)  Such 
nearness  in  the  order  of  events,  and  closeness  in  the  relation  of  cause  and 
effect,  must  subsist,  that  the  influence  of  the  injurious  act  may  pre- 
dominate over  that  of  other  causes,  and  shall  concur  to  produce  the 
consequence,  or  may  be  traced  in  those  causes.  To  a  sound  judgment 
must  be  left  each  particular  case.  The  connexion  is  usually  enfeebled, 
and  the  influence  of  the  injurious  act  controlled,  where  the  wrongful  act 
of  a  third  person  intervenes,  and  where  any  new  agent,  introduced  by 
accident  or  design,  becomes  more  powerful  in  producing  the  consequence 
than  the  first  injm-ious  act.  (8  East,  1 ;  1  Esp.  48.)  It  is,  therefore,  re- 
quired that  the  consequences  to  be  answered  for,  should  be  natural  as 
well  as  proximate.  (7  Bing.  211;  5  B.  &  Ad.  645.)  By  this,  I  under- 
stand, not  that  they  should  be  such  as  upon  a  calculation  of  chances 
would  be  found  likely  to  occur,  nor  such  as  extreme  prudence  might 
anticipate,  but  only  that  they  should  be  such  as  have  actually  ensued 
one  from  another,  without  the  occurrence  of  any  such  extraordinary  con- 
juncture of  circumstances,  or  the  intervention  of  any  such  extraordinary 
result,  as  that  the  usual  course  of  nature  should  seem  to  have  been  de- 
parted from.  In  requiring  concurring  consequences,  that  they  should  be 
proximate  and  natural  to  constitute  legal  damage,  it  seems  that  in  propor- 
tion as  one  quahty  is  strong,  may  the  other  be  dispensed  mth :  that  which 
is  immediate,  cannot  be  considered  unnatural;  that  which  is  reasonably 
to  be  expected  will  be  regarded,  although  it  may  be  considerably  re- 
moved.   (20  Wend.  223.) 

It  has  been  supposed,  in  argimient,  that  without  any  of  these  distinc- 
tions, it  is  always  sufficient  to  inquire  only  whether  the  consequences 
have  certainly  proceeded  from  the  injurious  act:  but  it  will  be  seen,  that 
in  setthng  what  have  certainly  proceeded  from  the  act,  we  will  be  obUged 
to  determine  what  are  natural  and  proximate,  unless  we  mean  to  run  to 
absurd  extremes. 

In  the  case  before  us,  the  defendant  has  insisted  that  the  damage  re- 
sulted not  so  much  from  his  act  as  from  the  acts  of  the  slave,  who  was  a 
moral  being,  and  a  free  agent.  (4  M'Cord,  223.)  In  cases  where  damage 
has  been  done,  during  the  continuance  of  a  wrongful  interference  \\ath  a 
slave,  it  was  considered  of  no  consequence  that  the  slave  was  a  free  agent: 
(2  Rich.  613;  Id.  455;  9  La.  Rep.  213)  for  there  the  consent  of  the  slave 
could  not  justify  the  interference,  and  even  the  wilful  act  of  the  sla\'e 
producing  the  damage  was  like  any  other  improbable  misfortune 
which  might  have  occurred  whilst  the  wrongful  act  was  in  operation. 
But  in  cases  Hke  this,  the  will  of  a  slave  may  well  interru})t  the  natural 
consequences  of  a  wrongdoer's  act,  and  produce  consequences  for  which 
he  should  not  answer.  SeUing  whiskey  to  a  slave  is  no  more  unlawful 
than  selhng  to  a  slave  any  other  article  without  license.  And  if  a  rope, 
sold  to  a  slave,  without  hcense  and  without  suspicion  of  mischief,  should 
be  employed  by  the  slave  to  hang  himself,  the  prominent  ground  of  dis- 


442  HARRISON    V.   BERKELEY.  [CHAP.  III. 

tinction  between  that  case  and  the  present  one  would  depend  upon  the 
will  of  the  slave.  If  it  should  be  said  that  the  slave  would  have 
got  a  rope  elsewhere,  or  would  have  taken  some  other  means  of  self- 
destruction,  it  might  be  answered  that  if  this  defendant  had  not  sold  the 
whiskey,  Bob  would  have  got  it,  or  some  other  means  of  intoxication, 
elsewhere.  But  where  the  miscliievous  purpose  of  a  slave  is  manifest, 
or  should  be  foreseen  by  ordinary  prudence,  the  injurious  act  embraces 
the  will  of  the  slave  as  one  of  its  ingredients;  —  the  WTong  consists,  in 
part,  in  ministering  to  the  purpose,  and  natural  consequences  of  that 
purpose,  (although  the  purpose  may  have  been  carried  to  an  extent  not 
anticipated,  or  the  consequences  may  have  been  altogether  undesigned 
and  unusual,)  are  the  legal  consequences  of  the  injurious  act.  Therefore, 
it  was  well  left  to  the  jury,  to  decide  whether  the  drinking  and  intoxica- 
tion of  Bob  were  the  natural  and  probable  consequences  of  selhng  hquor 
to  him.  If  fault  be  found  \\ith  the  instructions  given  on  this  head,  it  is 
that  they  were  too  favorable  to  the  defendant,  in  requiring  that  the  con- 
sequences should  be  found  to  be  probable  as  well  as  natural.  For  prox- 
imate and  natural  consequences,  not  controlled  by  the  unforeseen 
agency  of  a  moral  being,  capable  of  discretion,  and  left  free  to 
choose,  or  by  some  unconnected  cause  of  greater  influence,  a  WTong- 
doer  must  generally  answer,  howe\'er  small  was  the  probability  of  their 
occurrence.  In  many  instances,  the  will  of  a  slave,  as  a  controlUng 
cause,  would  be  found  as  feeble  as  was  the  will  of  a  child  that  received 
damage  from  a  cart  left  carelessly  in  the  street,  which  he  unlawfully  at- 
tempted to  drive.  (1  Adol.  &  El.  N.  S.  28.)  Often  the  intervention 
of  a  third  person's  will,  influenced  by  the  injurious  act,  has  no  effect 
in  rendering  consequences  too  remote.  (1  Ad.  &  El.  43;  2  C.  Mer.  & 
Rose.  707.) 

The  defendant,  however,  has  further  insisted  that  if  the  drinking 
and  intoxication  were  the  proximate  and  natural  consequences  of  his 
act,  the  exposure  and  death  were  not :  but  that  the  death  resulted  mainly 
from  the  exposure,  and  not  from  the  intoxication  only.  It  may  well  be 
said,  (speaking  in  the  language  of  everyday  hfe,  which  attempts  no  phil- 
osophical analysis,)  'that  the  expo.sure  was  the  immediate  effect  of  the 
intoxication,  and  that  the  two  produced  the  death.  Thus,  without  any 
unconnected  influence  to  be  perceived,  the  death  has  come  from  the  in- 
toxication, which  the  defendant's  act  occasioned.  The  defendant  cannot 
complain  that  an  agent,  which  his  own  act  naturally  brought  into  opera- 
tion, has  occurred  to  produce  the  result.  The  proximity  in  order  of 
events,  and  intimacy  of  relation  as  cause  and  effect,  between  the  injurious 
act  and  the  damage  are  as  great  here  as  in  various  cases  which  have  been 
cited.  (17  Pick.  78;  3  Scott  New  R.  386;  17  Wend.  71;  9  Wend.  325; 
11  East,  571;  and  the  cases  before  cited.) 

The  jury  have  decided  the  facts,  and  this  court  is  of  opinion  that  under 
the  inferences  which  must  be  drawn  from  the  finding,  the  verdict  is  free 
from  the  objection  that  the  damages  were  too  remote. 


SECT,  v.] 


FOTTLER  V.    MOSELEY. 


443 


The  instructions  concerning  a  delivery  to  Bass,  as  an  instrument  of 
Bob,  are  approved. 

The  motion  is  dismissed. 
Withers,  J.,  having  been  of  counsel  in  this  cause,  gave  no  opinion. 


uTly 


A 


FOTTLER  V.  MOSELEY. 
Supreme  Judicial  Court  of  ALvssachusetts,  1904. 

[Reported  179  Mass.  295.] 

Torfi^  fcJr  deceit,  alleging  that,  relying  upon  the  false  and  fraudulent 
representations  of  the  defendant,  a  broker,  that  certain  sales  of  the  stock 
of  the  Frankhn  Park  Land  Improvement  Company,  in  the  Boston  Stock 
Exchange  from  January  1  to  March  27,  1893,  were  genuine  transactions, 
the  plaintiff  revoked  an  order  for  the  sale  of  certain  shares  of  that  stock 
held  for  him  by  the  defendant,  whereby  the  plaintiff  suffered  loss.  \\'rit 
dated  February  17,  1896. 

At  the  first  trial  of  the  case  in  the  Superior  Court  a  verdict  was  ordered 
for  the  defendant,  and  the  exceptions  of  the  plaintiff  were  sustained  by 
this  court  in  a  decision  reported  in  179  Mass.  295.  At  the  new  trial  in  the 
Superior  Court  before  Sherman,  J.,  it  appeared  that  one  Mood;^'  Merrill, 
a  director  and  officer  of  the  Franklin  Park  Land  Improvement  Com- 
pany absconded  late  in  May  or  early  in  June  of  1893,  and  that  imme- 
diately upon  his  departure  it  was  discovered  that  he  had  embezzled  nearly 
$100,000  of  the  funds  of  that  company,  the  result  of  which  was  that  the 
market  price  of  the  stock  immediately  fell  and  the  stock  could  not  be 
sold;  that  the  plaintiff  from  the  time  of  the  discovery  of  the  defendant's 
alleged  fraud  did  his  best  to  .sell  his  stock,  but  was  unable  to  do  so  at 
more  than  $3  a  share,  at  which  price  he  sold  it  after  bringing  this  action. 

The  plaintiff  among  other  requests  asked  the  judge  to  rule,  "  That  it 
is  of  no  consequence  so  far  as  the  defendant's  liability  is  concerned  that 
an  outside  intervening  cause  has  been  the  sole  or  contributing  cause  of 
the  decHne  in  price  to  which  the  plaintiff's  loss  is  due.'' 

The  judge  refused  this  and  other  rulings  requested  by  the  plaintiff, 
and  instructed  the  jury,  among  other  things,  as  follows: 

"  If  you  find  the  fair  market  value  of  that  stock  was  always  above  what 
it  was  fictitiously  quoted,  or  equal  to  it,  and  that  it  was  .so  on  the  25th  of 
March,  1893,  and  remained  so  and  would  have  remained  so,  except  for 
the  embezzlement  and  absconding  of  Moody  Merrill,  then  the  plaintiff 
is  not  entitled  to  recover. 

"  If  you  find  that  Moody  Merrill's  going  away  did  destroy  the  value 


XAJMJm^MSi, 


444  FOTTLER   V.   MOSELEY.  [CHAP.  III. 

of  the  stock,  practically  destroy  its  value,  then  the  plaintiff  is  not  en- 
titled to  recover  anything. 

"You  may  take  all  the  evidence  on  this  subject,  the  fact  of  what 
Moody  Merrill  did,  and  what  effect  it  had  upon  the  market  value  of  this 
stock,  and  if  that  destroyed  the  market  value,  then,  as  I  have  told  you, 
the  plaintiff  is  not  entitled  to  recover  anything.  If  his  going  away  and 
embezzlement  did  not  affect  the  market  value  of  this  stock,  then  the 
plaintiff  may  recover  the  full  value  of  it." 

The  judge  submitted  to  the  jury  the  following  questions,  which  the 
jury  answered  as  stated  below: 

"1.  Did  the  defendant  make  a  representation  to  the  plaintiff  on 
or  about  March  25,  1893,  that  the  quotations  in  the  Boston  Stock  Ex- 
change of  Franklin  Park  Land  and  Improvement  Company  stock  were 
quotations  of  actual  and  true  sales?"    The  jury  answered  "Yes." 

"2.  Were  such  quotations  at  or  about  the  same  sum  as  the  quota- 
tions of  actual  sales  and  the  sales  at  public  auction?"  The  jury 
answered    "  Yes." 

"3.  What  was  the  fair  market  value  of  said  stock  on  or  about 
March  25,  1893?"     The  jury  answered  "$28.50  per  share." 

"  4.  What  was  the  fair  market  value  of  said  stock  on  the  last  day  of 
May,  or  immediately  prior  to  June,  1893,  the  day  before  Moody  Mer- 
rill's absconding?"    The  jury  answered  "$27.75  per  share." 

The  jury  returned  a  verdict  for  the  defendant;  and  the  plaintiff  al- 
leged exceptions. 

Knoavlton,  C.  J.  The  parties  and  the  court  seem  to  have  assumed 
that  the  evidence  was  such  as  to  warrant  a  verdict  for  the  plaintiff 
under  the  law  stated  at  the  pre\aous  decision  in  this  case,  reported  in 
179  Mass.  295,  if  the  diminution  in  the  selling  price  of  the  stock  came 
from  common  causes.  The  defendant's  contention  is  that  the  embez- 
zlement of  an  officer  of  a  corporation,  being  an  unlavN-ful  act  of  a  third 
person,  should  be  treated  as  a  new  and  independent  cause  of  the  loss, 
not  contemplated  by  the  defendant,  for  which  he  is  not  liable. 

To  create  a  liability,  it  never  is  necessary  that  a  wrongdoer  should 
contemplate  the  particulars  of  the  injury  from  his  wrongful  act,  nor 
the  precise  way  in  which  the  damages  will  be  inflicted.  He  need  not 
even  expect  that  damage  will  result  at  all,  if  he  does  that  which  is  un- 
lawful and  which  involves  a  risk  of  injury.  An  embezzler  is  criminally 
liable,  notwithstanding  that  he  expects  to  return  the  money  appropria- 
ted after  ha\ing  used  it.  If  the  defendant  fraudulently  induced  the 
plaintiff  to  refrain  from  selHng  his  stock  when  he  was  about  to  sell  it, 
he  did  him  a  wrong,  and  a  natural  consequence  of  the  wrong  for  which 
he  was  liable  was  the  possibility  of  loss  from  diminution  in  the  value  of 
the  stock,  from  any  one  of  numerous  causes.  Most,  if  not  all,  of  the 
causes  which  would  be  likely  to  affect  the  value  of  the  stock,  would  be 
acts  of  third  persons,  or  at  least  conditions  for  which  neither  the  plain- 
tiff nor  the  defendant  would  be  primarily  responsible.     Acts  of  the 


Si:CT.  v.]  MARS    V.   DELAWARE    &    HUDSON    CANAL    CO.  445 

officers,  honest  or  dishonest,  in  the  management  of  the  corporation, 
would  be  among  the  most  common  causes  of  a  change  in  value.  The 
defendant,  if  he  fraudulently  induced  the  plaintiff  to  keep  his  stock, 
took  the  risk  of  all  such  changes.  The  loss  to  the  plaintiff  from  the 
fraud  is  as  direct  and  proximate,  if  he  was  induced  to  hold  his  stock 
until  an  embezzlement  was  discovered,  as  if  the  value  had  been  dimin- 
ished by  a  fire  which  destroyed  a  large  part  of  the  property  of  the 
corporation,  or  by  the  unexpected  bankruptcy  of  a  debtor  who  owed 
the  corporation  a  large  sum.  Neither  the  plaintiff  nor  the  defendant 
would  be  presumed  to  have  contemplated  all  the  particulars  of  the  risk 
of  diminution  in  value  for  which  the  defendant  made  himself  liable  by 
his  fraudulent  representations.  It  would  be  unjust  to  the  plaintiff 
in  such  a  case,  and  impracticable,  to  enter  upon  an  inquiry  as  to  the 
cause  of  the  fall  in  value,  if  the  plaintiff  suffered  from  the  fall  wholly 
by  reason  of  the  defendant's  fraud.  The  risk  of  a  fall,  from  whatever 
cause,  is  presumed  to  have  been  contemplated  by  the  defendant  when 
he  falsely  and  fraudulently  induced  the  plaintiff  to  retain  his  stock. 
We  do  not  intimate  that  these  circumstances,  as  well  as  others,  may 
not  properly  be  considered  in  determining  whether  the  plaintiff  was 
acting  under  the  inducement  of  the  fraudulent  representations  in  con- 
tinuing to  hold  the  stock  up  to  the  time  of  the  discovery  of  the  em- 
bezzlement. The  false  representations  may  or  may  not  have  ceased 
to  operate  as  an  inducement  as  to  the  disposition  of  his  stock  before 
that  time.  Of  course  there  can  be  no  recovery,  except  for  the  direct 
results  of  the  fraud.  But  if  the  case  is  so  far  established  that  the 
plaintiff,  immediately  upon  the  discovery  of  the  embezzlement,  was 
entitled  to  recover  on  the  ground  that  he  was  then  holding  the  stock 
in  reliance  upon  the  fraudulent  statements,  and  if  the  great  diminu- 
tion in  value  came  while  he  was  so  holding  it,  the  fact  that  this  diminu- 
tion was  brought  about  by  the  embezzlement  of  an  officer  leaves  the 
plaintiff's  right  no  less  than  if  it  had  come  from  an  ordinary  loss. 

Exceptions  sustained. 


MARS  V.  DELAWARE  &  HUDSON  CANAL  CO. 

Supreme  Court  of  New  York,  1889. 

[Reported  54  Hun,  625.] 

Putnam,  J.  Plaintiff,  while  lawfully  on  a  regular  passenger  train  of 
defendant,  on  May  20,  1884,  was  injured  by  its  collision  with  a  "wild- 
cat" engine.  The  wild-cat  engine  was  left  that  evening  about  7  o'clock 
standing  upon  a  side  track,  two  tracks  east  of  the  down  main  track, 


446  MARS   V.   DELAWARE    &    HUDSON    CANAL   CO.       [CKAP.  III. 

upon  which  the  colhsion  occurred,  with  its  fire  banked,  in  charge  of 
an  employee  (one  McFarland)  whose  duty  it  was  to  keep  water  in  the 
boiler  and  take  general  charge  of  it  over  night.  About  one  A.  M., 
McFarland  left  the  engine  standing  upon  said  side  track  and  went 
north  several  hundred  feet  to  a  switch  shanty.  While  there  the  engine 
was  moved  in  some  wa\'  across  several  switches  upon  the  south-bound 
main  track,  and  the  engine  started  north,  backwarfl,  without  lights 
and  with  no  person  upon  it,  at  full  speed.  It  ran  about  half  a  mile 
and  collided  with  the  train  in  question. 

The  action  is  founded  on  the  defendant's  alleged  negligence  in  leav- 
ing its  engine  unattended  on  a  side  track,  and  it  is  claimed  that  such 
negligence  caused  the  injury  to  plaintiff  for  which  the  action  is  brought. 
It  is  not  clear  that  the  act  of  defendant  in  leaving  its  engine  on  its 
own  premises,  with  its  fire  banked  and  where  it  could  not  go  on  to 
any  main  track  without  passing  several  switches,  with  a  competent 
man  in  charge  of  it,  and  who  appears  only  to  have  left  it  after  it  had 
stood  six  hours,  and  when  not  likely  to  start,  was  under  any  circum- 
stances a  negligent  act.  A  party  is  only  answerable,  as  for  negligence, 
for  omitting  to  provide  against  those  dangers  which  might  be  reasonably 
expected  to  occur,  such  as  might  be  foreseen  by  ordinary  forecast. 
(Carpenter  Case,  24  Hun,  108.)  Could  defendant,  by  ordinary  fore- 
cast, have  foreseen  that  this  engine  would  be  moved  over  two  or  three 
switches,  across  an  intervening  track,  onto  the  south-bound  track 
and  sent  fl^Hlng  northward?  We,  however,  in  our  consideration  of  the 
case,  assume  that  the  jury  were  authorized  to  find  that  the  act  of  defend- 
ant and  its  servants,  in  leaving  this  engine  on  the  track  unattended 
at  the  time  mentioned,  was  negligence,  and  hence  that  if  that  negli- 
gent act  was  the  cause,  or  proximate  cause,  of  the  injury  to  the  plain- 
tiff, the  verdict  given  by  the  jury  should  be  sustained. 

The  learned  judge  who  presided  at  the  trial  charged  that,  if  the  en- 
gine was  started  from  where  it  was  placed  by  the  employees  of  the 
defendant  the  night  before,  by  some  person  not  in  the  employ  of  de- 
fendant, and  taken  to  the  main  track  and  sent  northward,  thus  causing 
the  accident,  the  defendant  was  not  liable;  but  that  if  such  act  was  done 
by  one  of  defendant's  employees,  though  negligently  or  willfully,  de- 
fendant would  be  liable.  And  he  refused  to  charge  that  if  the  act 
was  done  maliciously  by  one  of  the  defendant's  employees  (except 
McFarland),  defendant  was  not  liable. 

The  evidence  in  the  case  was  such  that  the  jury  could  have  properly 
found  that  the  engine  was  taken  from  where  it  had  been  left,  south- 
ward, over  and  across  several  switches,  onto  the  south-bound  track 
and  sent  rapidly  northward.  The  freight  agent  saw  it  first  going  north 
on  the  main  track  by  the  freight  depot,  which  was  south  of  where  it 
stood,  during  the  night.  Another  witness  saw  it  laboring  hard  and 
coming  from  the  south.  We  are  not  aware  that  there  is  any  contra- 
diction of  this  testimony,   and  hence  it  may,  perhaps,   be  deemed 


SECT.  V.J  MARS    V.   DELAWARE    &    HUDSON   CANAL    CO.  447 

established  that  the  engine  was  taken  south  to  the  main  track  and 
then  turned  and  sent  northward.  But,  at  least,  there  was  such  evi- 
dence given  that  the  jury  could  have  properly  so  found.  The  probabili- 
ties are  that  the  engine,  which  had  stood  there  six  hours  safely,  would 
not  then  have  started  itself,  and  mo\nng  over  several  switches,  onto 
the  main  track,  have  gone  northward.  If  the  engine  went  south  to  the 
main  track  and  then  turned  north,  it  follows  that  the  engine  must  have 
been  so  moved  by  some  human  agency.  It  did  not  appear,  nor  w-as  there 
any  e\'idence  to  indicate,  whether  the  act  was  done  by  an  employee  of 
defendant  or  other  person.  The  act,  by  whomever  done,  was  a  wicked, 
malicious  and  criminal  act,  subjecting  the  ofi'ender  to  criminal  punish- 
ment. The  engine  was  put  in  charge  of  McFarland,  and  it  is  conceded 
that  he  did  not  set  it  in  motion.  Whoever  did  put  the  engine  on  the 
south-bound  track  and  start  it  north,  whether  an  employee  or  not, 
did  an  act  in  violation  of  the  rules  of  the  company,  without  authority 
(because  McFarland  only  had,  at  that  time,  authority  over  the  en- 
gine), and  if  an  employee  not  in  the  discharge  of,  or  in  the  line  of,  his 
duty  as  employee,  but  outside  of  it. 

The  general  rule  is  well  settled  that  if  a  servant  misconducts  himself 
in  the  course  of  his  employment,  his  acts  are  the  acts  of  his  master, 
who  must  answer  for  them,  even  if  the  acts  are  willful  and  malicious. 
But  if  a  servant  goes  outside  of  his  employment  and  without  regard 
to  his  ser\ace,  acting  with  malice  or  in  order  to  effect  some  purpose 
of  his  own,  wantonly  causes  damage  to  another  the  master  is  not  liable. 
(Mott  V.  Consumers'  Ice  Co.,  73  N.  Y.,  547,  548;  Rounds  v.  Del. 
Lack,  and  W.  R.  R.  Co.,  64  id.  136;  Isaacs  v.  Third  Ave.  R.  R.  Co., 
47  id.  122.)  If  an  employee  of  defendant  moved  the  engine,  he  was 
not  acting  for  defendant;  he  was  not  doing  an  act  within  his  employ- 
ment, or  that  he  had  a  right  to  do,  but  he  was  committing  a  most 
heinous  crime.  As  to  that  the  relation  of  master  and  servant  did  not 
exist  between  defendant  and  him.  Hence  we  think  that,  assuming 
the  engine  was  moved  by  some  person  from  where  it  was  placed  by 
defendant,  such  act  was  a  theft  of  the  engine,  a  criminal  act,  and, 
whether  done  by  an  employee  of  defendant  or  other  person,  the  de- 
fendant is  not  responsible  therefor.  The  person  committing  such 
a  crime  did  not,  in  doing  it,  act  as  the  agent  of  defendant.  If  the  in- 
jury sued  for  was  caused  by  said  act,  the  defendant  is  not  liable  there- 
for. 

We  think,  therefore,  that  as  it  appeared,  or  the  jury  were  authorized 
to  find,  that  the  engine  was  moved  south  to  the  main  track,  and  then 
north,  by  some  employee  of  defendant  or  other  person  maliciously, 
the  defendant  was  entitled  to  have  the  jury  instructed  that  if  the 
engine  was  maliciously  started  by  one  of  defendant's  employees, 
other  than  McFarland,  the  defendant  was  not  liable.  Also,  that 
the  exception  to  the  charge  of  the  judge  to  the  jury,  that  if  the  person 
who  committed  the  act  was  an  employee  of  the  company,  whether 


448  MARS   V.    DELAWARE    &    HUDSON   CANAL   CO.        [CHAP.  IH. 

the  act  was  done  carelessly  or  willfully,  the  defendant  was  not  relieved 
of  liability,  was  well  taken,  and  hence  that  there  should  be  a  new  trial 
unless  the  position  taken  by  plaintiff,  and  next  considered,  is  correct. 

The  plaintiff  contends  that,  conceding  the  engine  was  moved  ma- 
liciously by  an  employee  of  the  defendant  or  other  person,  yet  the 
negligent  act  of  the  defendant  in  leaving  where  it  was,  a  dangerous 
machine  with  fire  in  it,  and  without  an  attendant,  was  one  of  the 
concurring  or  proximate  causes  of  the  injury  to  the  plaintiff,  and  hence 
that  plaintiff  was  entitled  to  recover. 

In  Williams  v.  Delaware  Lackawanna  and  Western  Railroad  Com- 
pany (39  Hun,  434)  it  is  stated  that  "  to  entitle  the  plaintiff  to  recover 
upon  the  ground  that  defendant  was  guilty  of  negligence,  in  not  fur- 
nishing a  sufficient  numljer  of  brakemen,  it  was  incumbent  on  the 
plaintiff  to  show  that  his  injury  was  the  result  of  such  negligence;  that 
it  was  the  natural  and  probable  consequence  of  the  defendant's  omis- 
sion, and  that  the  accident  would  not  have  happened  but  for  such 
omission."  Wharton  says:  "Supposing  that  if  it  had  not  been  for  the 
intervention  of  a  responsible  third  party,  the  defendant's  negligence 
would  have  produced  no  damage  to  the  plaintiff.  Is  the  defendant 
liable  to  the  plaintiff?  This  question  must  be  answered  in  the  nega- 
tive, for  the  general  reason  that  causal  connection  between  negligence 
and  damage  is  broken  by  the  interposition  of  independent  responsible 
human  action."  (Wharton's  Law  of  Negligence,  §  134.)  The  negligent 
act  which  is  the  proximate  cause  of  the  injury  is  an  act  which  naturally 
and  probably  would  produce  it.  (Kerrigan  v.  Hart,  40  Hun,  390,  391 
Williams  Case,  supra;  Ryan  r.  N.  Y.  C.  R.  R.  Co.,  35  N.  Y.  210 
Lowery  v.  Manhattan  Ry.  Co.,  99  id.  158;  Pollett  r.  Long,  56  id.  200 
Hofnagle  v.  N.  Y.  C.  and  H.  R.  R.  R.  Co.,  55  id.  608.)  That  is, 
where  the  negligent  act  is  the  cause  of  the  injury  and  where  there 
is  no  intervening  agency  affecting  or  changing  the  operation  of  the 
primal  cause.    (Reiper  v.  Nichols,  31  Hun,  495.) 

The  injury  to  plaintiff,  for  which  this  action  is  brought,  was  not 
caused  by  the  neglect  of  the  defendant  in  lea\'ing  its  car  on  the  track. 
The  injury  was  not  the  natural  or  ordinary  result  of  such  an  act. 
It  could  not  have  been  foreseen.  Between  the  alleged  negligence  of 
defendant  and  the  accident  intervened  a  willful,  malicious  and  crim- 
inal act  of  a  third  person,  which  caused  the  injury  and  broke  the 
connection  between  defendant's  negligence  and  the  accident.  In  fact, 
some  person  stole  defendant's  engine  and  sent  it  flying  up  the  track, 
and  this  wicked  criminal  act  was  the  cause  of  the  injury  to  the  plain- 
tiff, and  defendant's  act  in  lea\-ing  the  engine  where  the  criminal 
could  start  it  was  in  no  sense  the  proximate  cause  of  the  injury,  or 
an  act  which  ordinarily  or  naturally  could  have  produced  it. 

Plaintiff  has  called  our  attention  to  a  large  number  of  cases  bear- 
ing on  the  question  discussed.  We  have  examined  those  cases  and  do 
not  think  that  any  of  them  are  quite  parallel  to  this  case.     None 


SECT,  v.]  MARS   V.    DELAWARE    &    HUDSON   CANAL    CO.  449 

of  them  held  that  where,  between  the  negligent  act  and  the  injury, 
there  intervened  a  willful,  malicious  and  criminal  act,  which  was 
the  immediate  cause  of  the  injury,  and  where  the  injury  was  not  the 
ordinary  or  probable  result  of  the  negligence  complained  of,  and  could 
not  have  been  foreseen,  that  such  negligence  is  the  proximate  cause  of 
the  injury. 

In  the  cases  cited  by  plaintiff  it  will  be  found  that  the  injury  was  the 
natural,  probable  or  direct  result  of  the  negligent  act.  In  the  Cohen 
Case  (113  N.  Y.  532)  the  injury  was  the  direct  result  of  the  wrongful 
act  of  the  city  of  New  York,  in  allowing  a  person  to  keep  a  nuisance 
in  the  street.  In  Lane  v.  Atlantic  Works  (111  Mass.  136)  the  court 
put  the  decision  on  the  ground  "that  the  original  negligence  still  re- 
mains a  culpable  and  direct  cause  of  the  injury.  The  test  is  to  be  found 
in  the  probable  injurious  consequences  which  were  to  be  anticipated. " 
In  Illidge  v.  Goodwin  (5  Carr.  &  P.  190)  a  horse  and  cart  were 
left  in  the  street  without  an  attendant.  A  wrongdoer  struck  the 
horse,  started  him,  and  he  did  the  injury  complained  of.  But  a  horse 
standing  in  the  street  is  liable  to  run  away.  It  may  become  restless 
or  frightened,  or  be  started  by  a  wrongdoer.  The  injury  in  that 
case  was  the  natural  and  ordinary  consequence  of  the  neglect  shown 
and  should  have  been  foreseen.  That  case  is  very  briefly  reported.  It 
does  not  appear  whether  the  striking  of  the  horse  was  merely  a  negli- 
gent striking  or  a  willful  act.  If  in  that  case  some  one  had  taken 
the  reins  and  driven  the  cart  into  another  street,  and  started  the 
horse  on  a  run  against  another  wagon  on  that  street,  the  case  would 
have  been  more  like  this. 

The  case  before  us  (assuming  that  some  person  maliciously  started 
the  engine)  might  be  deemed  like  that  of  a  man  who  negligently  left 
a  loaded  gun  on  his  premises,  accessible  to  the  public,  which  some  one 
took  and  with  it  injured  another.  Would  the  owner  of  the  gun  be 
liable  for  the  injury?  In  Binford  v.  Johnston  (82  Ind.  428)  it  was  held 
that  the  fact  that  some  agency  intervened  between  the  original  negli- 
gence and  the  injury,  did  not  preclude  a  recovery  if  the  injury  was  the 
natural  and  probable  result  of  the  original  wrong.  In  the  Lowery  Case 
(99  N.  Y.  163)  it  was  held,  although  the  act  of  the  driver  intervened 
between  the  negligence  of  the  defendant  and  the  injury,  that  the 
act  of  the  driver,  in  view  of  the  exigencies  of  the  case,  whether  prudent 
or  otherwise,  may  well  be  considered  as  a  continuation  of  the  original 
act  which  was  caused  by  the  neglect  of  defendant.  In  the  "Squib" 
case  the  intermediate  parties  were  held  to  have  acted  mechanically  in 
a  sudden,  convulsive  act,  so  that  the  injury  was  in  fact  deemed  caused 
by  the  original  negligent  act  of  the  defendant.  So  we  think  that  all  the 
cases  cited  by  the  plaintiff  will  be  found  to  differ  from  the  case  we  are 
considering  in  the  regard  above  suggested. 

We  think  there  should  be  a  new  trial.  If  such  a  state  of  facts  appear 
on  the  retrial  that  the  jury  would  be  authorized  to  find  that  the  engine 


450  MILOSTAN   V.    CHICAGO.  [CHAP.  III. 

started  itself,  without  being  set  in  motion  by  any  human  agency, 
found  its  way.  on  to  the  main  track  and  thus  caused  the  accident,  we 
think  the  case  would  properly  be  submitted  to  the  jury.  Should  it 
appear,  however,  that  some  wrongdoer  criminally  placed  the  engine 
on  the  south-bound  track  and  started  it  northward,  we  are  of  the 
opinion  that  the  defendant  could  not  be  held  liable.  In  that  case 
defendant  could  not  be  deemed  negligent  as  to  the  plaintiff. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  costs 
to  abide  the  event. 

Leaened,  p.  J.,  concurred. 

Landon,  J.  (dissenting):  The  case  of  Lane  v.  Atlantic  Works 
(111  Mass.  136),  states  very  clearly  the  propositions  governing  this 
case.  The  injury  must  be  the  direct  result  of  the  misconduct  charged, 
but  it  will  not  be  considered  too  remote  if,  according  to  the  usual 
experience  of  mankind,  the  result  ought  to  have  been  apprehended. 
The  act  of  a  third  person,  intervening  and  contributing  a  condition  nec- 
essary to  the  injurious  effect  of  the  original  neghgence,  will  not  excuse 
the  first  wrongdoer,  if  such  act  ought  to  have  been  foreseen.  Practical 
knowledge  and  experience  are  required  for  the  determination  of  the 
question  whether  some  such  injurious  interference  and  result  ought 
to  have  been  apprehended,  and  the  verdict  of  the  jury  usually  deter- 
mines this  question.  Here  the  jury  have  answered  the  questions 
involved  as  follows :  When  the  engine  was  abandoned  it  was  reasonable 
to  apprehend  that  some  weak  or  wicked  person  would  be  tempted 
to  set  it  in  motion.  A  jury  of  railroad  superintendents  would  prob- 
ably concur  in  that  conclusion.  If  thus  set  in  motion,  injury  was 
to  be  apprehended  to  whatever  persons  or  property  might  then  happen 
to  be  ex-posed.     The  plaintiff  was  exposed  and,   therefore,  injured. 

I  advise  an  affirmance  of  the  judgment. 

Judgment  reversed,  new  trial  granted,  costs  to  abide  event} 


sy 


MILOSTAN  V.   CHICAGO. 
Appellate  Court,  Illinois,  1909. 

[Reported  148  III.  App.  540.] 

It  appears  from  the  e\ndence  that  there  is  a  brick  building,  fronting 
on  Noble  Street,  at  the  southwest  corner  of  Noble  and  Blackhawk 
streets.  The  building  stands  up  close  to  the  sidewalk  on  Blackliawk 
street.  On  the  latter  street,  along  the  side  of  the  building,  there  is  an 
opening  or  area-way  in  the  cement  sidewalk.  This  area-way  is  variously 
stated  to  be  three  to  six  feet  wide,  about  six  feet  in  depth  and  of  con- 

J       1  See  International  R.  R.  v.  Johnson,  23  Tex.  Civ.  App.  160.  — Ed. 


SECT,  v.]  MILOSTAN    V.   CHICAGO.  451 

siderable  length.  About  5  o'clock  in  the  afternoon  in  question,  Jozef 
Milostan,  with  two  friends,  Bernard  Piotrowski  and  John  Magorski, 
came,  walking  east,  along  the  sidewalk  at  the  side  of  this  building. 
Bernard  walked  to  the  left  of  plaintiff  and  John  a  little  behind  the  two. 
When  they  were  within  a  few  feet  of  Noble  street  Bernard  suddenly 
stepped  behind  Jozef,  grabbed  him  by  the  two  arms  and  pushed  or 
shoved  him  off  the  sidewalk  into  the  area-way.  Bernard  testified  that 
he  did  it  intentionally,  to  scare  Jozef  —  "fool"  him  or  have  some  fun 
with  him,  but  that  he  did  not  intend  to  hurt  him.  Jozef  suffered 
a  compound  fracture  of  the  bone  extending  from  the  shoulder  to  the 
elbow-joint  in  the  left  arm,  and  there  was  both  a  transverse  and  a 
longitudinal  fracture.  It  is  probably  a  permanent  injury.  There  is 
no  question,  upon  the  evidence,  but  that  the  act  of  Bernard  was  a  wil- 
ful, intentional  act.  The  act  was  neither  an  act  of  negligence  nor  an 
accident. 

Chytraus,  J.  Plaintiff  can  recover  only  if  he  succeeds  in  estab- 
lishing one  of  two  propositions,  namely:  The  negligence  of  the  city, 
in  leaving  unguarded  the  area-way,  was  the  proximate  cause  of  the 
plaintiff's  injury;  or,  the  combined  and  concurring  negligence  of 
Bernard  Piotrowski  and  the  city  was  the  proximate  cause  of  the 
plaintiff's  injury.  If  the  act  of  Piotrowski  was  the  proximate  cause, 
then  the  plaintiff  cannot  recover.  No  matter  how  negligent  the  city 
was,  if  its  negligence  was  not  the  proximate  cause,  or  one  of  the  ele- 
ments in  the  proximate  cause,  the  city  is  not  liable.  There  is,  in  this 
case,  no  material  fact  in  dispute.  "  It  is  a  general  principle  of  juris- 
prudence, under  both  the  ci\al  and  common  law,  that,  to  entitle  a  party 
to  recover  for  damages  alleged  to  have  been  sustained  in  consequence 
of  the  negligence  of  another,  there  must  not  only  be  negligence  in 
fact,  but  it  must  have  been  the  proximate  cause  of  the  injury."  C.  & 
A.  R.  R.  Co.  V.  Becker,  76  111.  25,  30. 

At  the  start,  it  is  well  to  have  a  clear  understanding  of  the  meaning 
of  the  term  proximate  cause.  The  Century  Dictionary  defines  "  prox- 
imate" to  mean  "next,"  "immediate,"  "without  the  intervention 
of  the  third,"  and  "  proximate  cause  "  as  "  that  cause  which  immediately 
precedes  and  chrectly  produces  an  effect,  as  distinguished  from  a  re- 
mote, mediate  or  predisposing  cause."  In  Wabash  R.  R.  Co.  v.  Coker, 
81  111.  App.  660,  which  was  affirmed  in  the  Supreme  Court,  after  hold- 
ing that  "  The  breach  of  duty  upon  which  an  action  is  brought  must  not 
only  be  the  cause,  but  the  proximate  cause,  of  the  damages  to  the 
plaintiff,"  the  court  defined  proximate  cause  by  saying:  "The  proxi- 
mate cause  of  an  event  must  be  understood  to  be  that  which,  in  a 
natural  and  continuous  sequence,  unbroken  by  any  new,  independent 
cause,  produced  an  event,  and  without  which  that  event  would  not 
have  occurred."  In  Strojny  v.  Griffin  Wheel  Co.,  116  111.  App.  550, 
552,  this  court  adopted  that  definition  and  added:  "An  intervening 
sufficient  cause  is  a  new  and  independent  ^"orce  which  breaks  the 


452  MILOSTAN   V.   CHICAGO.  [CHAP.  III. 

causal  connection  between  the  original  wrong  and  the  injury,  and  it 
becomes  the  direct  and  immediate  —  that  is,  the  proximate  —  cause 
of  the  injury.  The  test  is,  was  it  a  new  and  independent  force,  acting 
in  and  of  itself  in  causing  the  injury,  and  superseding  the  original 
wrong  so  as  to  make  it  remote  in  the  chain  of  causation?"  In  Good- 
lander  Mill  Co.  V.  Standard  Oil  Co.,  11  C.  C.  A.  253,  63  Fed.  400,  a  case 
in  which  there  was  a  bitter  legal  contest  between  able  counsel,  we  find 
the  definition  stated  as  follows:  "The  proximate  cause  of  an  injury 
is  that  cause  which,  in  natural  and  continuous  sequence,  unbroken 
by  any  efficient  intervening  cause,  produces  the  injury,  and  without 
which  the  result  would  not  have  occurred.  .  .  .  The  remote  cause 
is  that  cause  which  some  independent  force  merely  took  advantage  of  to 
accomplish  something  not  the  probable  or  natural  effect  thereof." 

When  we  understand  what  is  meant  by  "proximate  cause,"  it  is 
clear,  without  discussion,  that  the  omission  of  the  city,  in  leaving 
unguarded  the  area-way,  was  not  alone  the  proximate  cause  of  the 
plaintiff's  injury,  if  it  was  a  cause  at  all.  Thus  the  plaintiff  fails  in  the 
first  of  the  two  propositions  stated. 

It  is  to  be  noted,  in  connection  with  the  second  proposition,  that 
the  plaintiff's  position  is,  in  his  brief,  stated  as  follows:  "We  contend 
that  the  negligence  of  the  defendant  contributed  to  the  injury  and  that 
without  the  negligence  of  the  defendant  in  this  regard  the  accident 
could  not  have  occurred."  It  is  true  that  where  an  "  injury  is  the  result 
of  the  negligence  of  the  defendant  and  that  of  a  third  person;  or  of 
the  defendant  and  an  inevitable  accident;  or  an  inanimate  thing  has 
contributed  with  the  negligence  of  the  defendant  to  cause  the  injury, 
the  plaintiff  may  recover,  if  the  negligence  of  the  defendant  was  an 
efficient  cause  of  the  injury."  Pullman  Palace  Car  Co.  v.  Laack,  143 
111.  242,  261.  If  an  act  of  negligence  on  the  part  of  Piotrowski  and  an 
act  of  negligence  on  the  part  of  the  city  combined  or  cooperated  — 
the  two  concerning  proximately,  that  is,  not  necessarily  in  point  of 
time  but  in  causation,  to  the  effect  —  so  as  to  injure  the  plaintiff,  then, 
unquestionably,  both  would  be  liable  to  him,  jointly  or  severally.  It 
would,  however,  in  such  case,  be  necessary  in  order  to  create  hability 
upon  both  that  negligence  on  the  part  of  both  should  contribute  proxi- 
mately, that  is,  as  an  element  in  the  proximate  cause,  and  without 
'intervention  of  another  independent  force  as  the  producing  cause. 
In  the  case  at  bar  it  is  to  be  observed  that  the  concurring  act  of  Pio- 
trowski was  not  merely  an  act  of  negligence  but  it  was  an  intentional, 
wilful  and  deliberate  act.  That  is  to  say,  the  act  was  wilful  whether 
or  not  the  intent  to  injure  was  present.  On  the  other  hand,  on  the 
part  of  the  city  there  was  merely  the  passive,  omissive  negligence  of 
permitting,  or  leaving  in  an  unguarded  state,  the  area-way,  without 
which  negligence,  it  is  contended,  "the  accident  could  not  have  oc- 
curred." Passing,  for  a  moment,  the  question  whether  anything  in  the 
evidence  justifies  the  assertion  that  but  for  the  unguarded  state  of  the 


II 


SECT,  v.]  MILOSTAN   V.   CHICAGO.  453 

area-way  this  accident  could  not  have  occurred  we  finrl,  here,  that 
the  act  of  Piotrowski  and  the  omission  of  the  city  are  not  of  the  same 
legal  nature  and  not  on  the  same  legal  level  in  the  law  of  wrongs  to 
persons.  This  raises  a  question  entirely  different  from  that  which 
would  have  arisen,  if  Piotrowski's  act  had  been  one  of  negligence  merely. 
Undoubtedly  the  city  was  guilty  of  negligence  in  permitting  the 
area-way  to  exist  in  the  sidewalk,  and  more  so  in  permitting  it  to  re- 
main unguarded.  But  an  act  of  wilful  \dolence  by  one  person  and  mere 
negligence  chargeable  to  another  person  cannot,  together,  contribute 
so  as  to  become  the  proximate  cause  of  injury  to  a  third  person.  For 
instance,  as  here,  a  wilful  act  of  \'iolence  of  the  one  and  a  negligent 
physical  condition  chargeable  to  another  are  incompatible  as  joint 
and  contributory  elements  in  one  and  the  same  proximate  cause  of  an 
injury.  In  the  very  nature  of  tilings,  wilful  \'iolence,  as  a  producing 
or  efficient  cause  of  injur}',  will  precede  negligence,  where  they,  in 
point  of  time,  concur  or  co-exist  in  connection  with  the  injury.  What- 
ever the  breach  of  dut}'  constituting  merely  negligence,  on  the  part  of 
one,  the  interposition,  by  another,  of  wilful  vdolence,  is,  necessarily, 
an  intervention  of  a  new  and  independent  force,  which  breaks  the 
causal  connection  between  the  negligence  and  the  injury.  The  incon- 
sistency and  incompatibility  between  wilful  violence  and  mere  neg- 
ligence is  such  that  they  cannot  concur  or  co-exist,  in  the  direct  or 
proximate  cause,  except  in  point  of  time;  the  idea  that  they  can  juridi- 
cally be  co-ordinates  in  the  causation  of  an  injury  is  inconceivable. 
Concurrence  in  point  of  time  is  not,  necessarily,  concurrence  in  point 
of  cause.  While  the  two  —  neghgence  and  violence  —  may  concur 
in  point  of  time,  the  violence  necessarily  precedes  the  neghgence  in 
being  the  producing,  direct  and  proximate  cause  of  the  injury.  At 
common  law  there  is  a  distinct  remedy  for  each;  in  the  one  instance 
trespass  and  in  the  other  an  action  on  the  case  lies.  Conceding,  there- 
fore, that  the  negligence  of  the  city  concurred,  in  point  of  time,  with  the 
act  of  Piotrowski,  which  was  an  act  of  wilful  \nolence,  and  the  injury 
to  plaintiff  was  thus  effected,  then  the  wilful  violence  of  Piotrowski 
was  the  proximate  cause  and  the  mere  negligence  on  the  part  of  the 
city  was  but  a  remote  cause  of  the  injury  to  the  plaintiif.  In  no  wise 
can  we  consider  the  act  of  Piotrowski  as  negligence,  merely. 

But,  considering  the  case  from  another  point  of  \aew,  we  cannot 
agree  with  plaintiff's  counsel  that  the  negligence  of  the  defendant  was 
the  proximate  cause  of  the  injury.  True,  at  the  place  in  question,  there 
was  a  state  or  condition  of  negligence  created  by  defendant's  failure 
to  exercise  reasonable  care  to  keep  the  sidewalk  —  highway  —  rea- 
sonably safe  for  ordinary  use.  But,  in  this  particular  instance,  the 
plaintiff,  so  far  as  that  particular  negligence  is  concerned,  was  passing 
along  —  by  the  area-way  —  in  safety  and  he  had,  undoubtedly,  the 
hour  of  the  day  being  considered,  observed  the  area-way  and  was 
avoiding  it.    He  had  passed  alongside  of  the  area-way  for  a  considerable 


454  MILOSTAN   V.    CHICAGO.  [CHAP.  III. 

distance  and  was  nearly  past  it  when  Piotrowski's  act,  availing  itself 
of  the  existing  conditions  and  the  occasion  afforded  by  the  presence  of 
the  area-way,  intervened,  and,  as  the  direct  and  efficient  cause,  brought 
about  plaintiff's  injury.  Plainly  plaintiff  would  have  safely  passed 
the  area-way  but  for  the  intervention  of  this  procuring  and  proximate 
cause  of  the  injury.  The  remark  made  by  Dr.  Bishop  in  one  of  his 
excellent  works,  while  discussing  contributory  negligence  on  the  part 
of  a  plaintiff,  is  here,  in  principle,  applicable.  He  says :  "  If,  while  one 
is  negUgent  —  perhaps  the  expression  should  be,  in  a  state  of  negligence 
—  another  negligently  employs  an  independent  force,  which,  availing 
itself  of  the  occasion  afforded  by  the  former's  negligence,  works  a  harm 
not  its  natural  and  probable  consequence,  but  an  independent  harm, 
the  first  negligence  is  not  contributory  to  the  second."  Bishop  Non- 
Contract  Law,  §  463.  According  to  the  facts  in  this  particular  in- 
stance it  is  clear  that  the  harm  done  plaintiff  was  not  a  natural  con- 
sequence of  the  presence  of  the  area-way  and  therefore  the  condition 
of  the  area-way  was  not,  in  point  of  causation,  the  direct  or  proximate 
cause  of  plaintiff's  injury. 

Plaintiff's  counsel  appear  to  argue  that  the  presence  of  the 
area-way  operated  as  an  incentive  or  inducement  to  Piotrowski,  by 
his  wilful  violence,  to  shove  plaintiff  into  this  area-way.  For,  it  is 
argued  "that  without  the  negligence  of  the  defendant  in  this  regard 
the  accident  would  not  have  occurred."  Were  it  true  that  the  presence 
of  the  area-way  did  so  operate  upon  Piotrowski's  mind,  the  city  would 
not,  on  that  account,  be  responsible.  No  one  is  liable  for  more  than  the 
natural  and  probable  consequences  of  his  negligence  and  it  was  neither 
natural  nor  probable  that  the  presence  of  the  area-way  should  so  oper- 
ate. It  would  be  idle  to  speculate  upon  what  would  or  would  not  have 
happened  if  the  area-way  had  been  guarded  or  had  not  been  there, 
wath  reference  to  plaintiff  being  injured;  for  whatever  conclusion  one 
would  come  to  would  be  but  a  conjecture.  Upon  the  facts  as  they  are 
the  defendant's  negligence  was  not  the  proximate  cause  of  the  injury. 
There  was  no  immediate  causal  connection  between  the  presence  of  the 
area-way  and  the  happening  of  the  injury.  An  element  intervened. 
Seymour  v.  Union  Stock  Yards  Co.,  224  111.  579,  585;  Cole  v.  German 
Sa\dngs  &  Loan  Soc,  59  C.  C.  A.  593,  124  Fed.  113;  Terminal  R.  R. 
Assn.  V.  Larkins,  112  111.  App.  366. 

Counsel  for  plaintiff  rely  upon  Siegel,  Cooper  &  Co.  v.  Trcka,  218 
111.  559.  The  doctrine  of  that  case  is  (p.  562-3),  that,  if  a  defendant  is 
guilty  of  negligence,  which  negligence  is  an  element  in  the  proximate 
cause  of  the  injury,  then  it  makes  no  difference,  as  to  liability,  that 
some  act  or  agency  of  some  other  person  or  thing  also  contributes  to 
bring  about  the  result  for  which  damages  are  claimed.  There  are  two 
distinctions  between  that  case  and  the  case  at  bar.  According  to  the 
expressions  in  the  opinion  in  that  case  the  court  was  considering  a  case, 
where,  in  point  of  fact,  two  contributing  acts  of  negligence  constituted 


SECT,  v.]  McINTIRE   V.   ROBERTS.  455 

the  proximate  cause.  Here,  in  point  of  fact,  we  find  in  the  act  of  Pio- 
trowski,  alone,  the  efficient  and  direct  proximate  cause.  Another  dis- 
tinction is  that  in  that  case,  as  appears  from  the  language  of  the  opin- 
ion, the  two  parties  who  occasioned  the  injury  were  both  guilty  of 
mere  negligence,  while  in  the  case  at  bar  the  party  we,  so  far  as  this 
case  is  concerned,  consider  responsible  for  the  happening  and  whose 
act  was  the  proximate  cause,  was  guilty  of  a  wilful  act  of  \nolence 
which,  as  shown,  preceded  the  city's  mere  negligence  as  a  proximate 
cause. 

For  reason  indicated  the  judgment  of  the  Superior  Court  must  be 
reversed  without  remanding. 

Reversed} 

Mr.  Justice  Baker  dissenting. 


McINTIRE   V.   ROBERTS. 
Supreme  Judicial  Court  of  Massachusetts,  1889. 

[Reported  149  Mass.  450.] 

There  was  evidence  tending  to  prove  the  following  facts.  The 
defendants  had  occupied  the  building  in  question  for  several  years. 
The  elevator  well,  in  which  ran  a  freight  elevator  used  by  the  defend- 
ants in  their  business,  was  in  the  front  part  of  the  building.  An  en- 
trance was  afforded  to  this  well  directly  from  the  street  and  across  the 
sidewalk  through  an  opening  five  or  six  feet  wide  and  about  ten  feet 
high  cut  through  the  front  wall  of  the  building.  The  base  or  sill  of 
this  opening  was  formed  by  a  stone  about  eighteen  inches  in  width, 
which  sill  did  not  project  beyond  the  front  line  of  the  building,  and  was 
raised  about  three  inches  above  the  surface  of  the  sidewalk.  On  each 
side  of  this  opening,  about  two  feet  and  ten  inches  above  the  surface 
of  the  sill,  there  was  a  notch  in  the  wall  to  support  a  bar  to  protect 
persons  on  the  sidewalk  from  falling  into  the  well.  On  August  26,  1887, 
about  five  o'clock  in  the  afternoon,  the  sidewalk  in  front  of  the  build- 
ing was  obstructed  by  men  engaged  in  unloading  iron  castings  from  a 
wagon  backed  up  against  the  curbstone,  and  in  carrying  them  across 
the  sidewalk  and  piling  them  against  the  building  preparatory  to  plac- 
ing them  through  this  opening  upon  the  freight  elevator.  The  plaintiff, 
who  was  sixty-two  years  of  age  and  lived  in  the  vicinity,  was  at  the 
time  passing  along  Merrimack  Street  on  his  way  to  his  home.    When  the 

1  See  also  Loftus  v.  Dehail,  133  Cal.  214,  65  Pac.  379;  Alexander  v.  New  Castle, 
115  Ind.  51.  — Ed. 


456  McINTIRE    l\   ROBERTS.  [CHAP.  III. 

wagon  was  unloaded,  he  proceeded  to  pass  by  on  the  sidewalk,  and 
was  opposite  the  opening,  which  was  then  unguarded  by  the  bar,  when 
the  horse  attached  to  the  wagon  suddenly  backed  the  wagon  upon  the 
sidewalk,  forcing  against  him  the  persons  upon  the  sidewalk  between 
himself  and  the  wagon,  and  these  persons  pushed  him  towards  the  de- 
fendants' building.  The  plaintiff's  feet  struck  against  the  stone  sill 
of  the  opening,  and  he  fell  down  the  well  into  the  defendants'  cellar, 
sustaining  the  injuries. 

Field,  J.^  If  it  be  assumed  that,  when  a  building  abuts  upon  a 
street,  it  is  for  the  authorities  of  the  city  or  town  to  determine  whether 
the  entrances  into  the  building  from  the  street  are  so  constructed  that 
they  may  be  permitted  to  remain,  —  and  if  it  be  also  assumed  that, 
when  entrances  are  permitted  which  are  constructed  so  as  to  be  closed 
when  not  in  use  by  doors  or  some  other  barrier,  the  occupier  of  the 
building  is  liable  in  damages  to  travellers  upon  the  street  if  the  doors 
are  negligently  left  open  or  the  barrier  left  down  whereby  the  street 
becomes  unsafe  and  the  travellers  are  injured, —  still  we  are  of  opinion 
that  the  facts  stated  in  the  report  do  not  show,  or  tend  to  show,  negli- 
gence on  the  part  of  the  defendants.  It  does  not  appear  that  the  open- 
ing was  not  constructed  so  as  to  be  closed  with  doors,  or  by  a  proper 
barrier,  when  the  elevator  was  not  in  use.  The  stone  sill  was  about 
three  inches  above  the  sidewalk;  the  opening  was  but  five  or  six  feet 
wide,  and  nearly  at  a  right  angle  with  the  line  of  the  sidewalk,  and  the 
wall  of  the  building  was  about  eighteen  inches  thick.  It  was  impossible 
that  any  traveller  using  due  care  in  the  daytime  should  mistake  the 
opening  for  a  continuation  of  the  sidewalk.  The  only  danger 
was  that  a  person  on  the  sidewalk  might  be  pushed  into  the  opening, 
as  he  might  be  pushed  against  the  wall  of  the  building,  or  against  or 
through  a  window,  or  against  a  door.  The  elevator  at  the  time  of  the 
accident  was  in  use  for  carrying  up  the  iron  castings  which  were  being 
unloaded  from  the  wagon  which  had  been  backed  up  against  the  curb- 
stone of  the  sidewalk.  The  accident  that  happened  was  one  that  could 
not  reasonably  have  been  anticipated,  unless  the  horse  was  vicious, 
or  there  was  negligence  in  managing  him,  and  it  does  not  appear  that 
the  horse  belonged  to  the  defendants,  or  that  the  persons  who  were 
unloading  the  castings  or  were  in  control  of  the  horse  were  servants  of 
the  defendants.^ 

^  Part  of  the  opinion  is  omitted.  —  Ed. 

2  See  also  Siegel,  Cooper  &  Co.  v.  Trcka,  218  111.  559,  75  N.  E.  1053.  —  Ed. 


SECT,  v.]  STATE   V.    WOOD.  457 

STATE  V.   WOOD. 

Supreme  Court  of  Vermont.     1881. 
[Reported  53  Vt.  560.] 

Veazet,  J.^  .  .  .  We  think  the  exception  to  the  charge  of  the 
court  to  the  jury  in  response  to  the  sixth  request  must  be  sustained. 
The  evidence  on  the  part  of  the  State  showed  that  Luman  A.  died 
from  the  effects  of  the  wound  inflicted  b}-  Alma,,  and  not  from  that 
inflicted  by  Wood ;  and  their  evidence  tended  to  show  that  there  was 
no  concert  between  them,  but  that  each  acted  independent!}'. 

The  court  instructed  the  jur}'  in  substance  that  although  Luman  A. 
died  of  the  wound  inflicted  by  Alma  and  not  from  that  inflicted  by 
Wood,  and  although  there  was  no  concert  between  them,  and  each  acted 
independently,  and  they  were  therefore  onl}'  responsible  for  their  own 
acts  respectively,  still  if  the  wound  inflicted  by  Wood  was  mortal,  and 
would  in  course  of  time  have  killed  Luman  A.,  if  he  had  not  previousl}' 
died  from  the  wound  inflicted  bj-  Alma,  and  although  he  did  not  die 
of  the  wound  by  Wood,  yet  the  latter  could  be  convicted  of  murder. 

The  court  was  in  error  in  the  assumption  tliat  a  man  can  be  con- 
victed of  murder  although  his  act  does  not  cause  the  death.  The 
question  does  not  turn  upon  the  moral  aspect  of  the  case.  The  intent 
to  murder  may  be  never  so  plain,  yet  if  something  intervenes  to  pre- 
vent the  consummation  of  the  intent,  if  death  does  not  follow  from  the 
act  of  the  accused,  he  is  not  in  law  a  murderer.  All  of  the  definitions 
of  murder  found  in  the  books  involve  the  idea  and  fact  of  a  killing. 
This  must  have  reference,  when  a  man  is  on  trial,  to  a  killing  by  him. 
If  one  inflicts  a  mortal  wound,  but  before  death  ensues,  another  kills 
the  same  person  b}'  an  independent  act,  without  concert  with,  or  pro- 
curement of,  the  first  man,  how  can  he  be  said  to  have  done  the  killing? 
The  second  person  could  be  convicted  of  murder,  if  he  killed  with 
malice  aforethought,  and  to  convict  the  first  man  would  be  assuming 
that  he  killed  the  same  person  at  another  time.  See  State  v.  Scates, 
5  Jones  Law  (N.  C),  420. 

Upon  the  supposition  contained  in  the  request  and  charge,  and  upon 
the  showing  made  by  the  State  that  Luman  A.  died  from  the  shot 
given  by  Alma  and  not  by  that  given  b}-  Wood,  the  latter  could  not  be 
convicted  of  any  crime  under  this  indictment.  The  statute,  s.  12,  ch, 
120,  Gen.  Sts.,  providing  that  a  person  put  on  trial  for  murder  may  be 
acquitted  of  that,  and  found  guilty  of  manslaughter,  would  not  apply  to 
Wood's  case,  because  upon  the  supposition  stated,  there  was  no  death 
from  this  act.  The  evidence  on  the  part  of  the  State,  as  assumed  in 
the  supposition,  tends  to  show  that  Wood  is  guilty  of  an  assault  with 
intent  to  kill,  being  armed  with  a  dangerous  weapon.  The  statute  does 
not  provide  that  a  person  may  be  found  guilty  of  this  crime  under  an 
indictment  for  murder. 

1  Ouly  so  much  of  the  opiuion  as  discusses  the  question  of  causation  is  given.  —  Ed. 


458,  DE   CAMP   V.    SIOUX   CITY.  [CHAP.  Ill* 


DE  CAMP  V.   SIOUX  CITY. 
Supreme  Court  of  Iowa,  1888. 

[Reported  74  la.  392.] 

RoTHROCK,  J.  There  is  but  little  controversy  as  to  the  material 
facts  in  the  case.  The  plaintiff  is  an  expressman.  He  used  an  ex- 
press wagon  and  one  horse  in  carrying  on  his  business.  On  the  nine- 
teenth of  September,  1885,  he  was  driving  along  Fourth  street,  in  said 
city,  his  horse  going  in  a  walk.  He  was  met  in  the  street  by  a  butcher's 
wagon,  in  which  there  were  two  men.  The  wagons  collided,  by  reason 
,  ,  /-  /^  of  which  the  plaintiff  was  violently  thrown  out  upon  the  ground,  his 
wagon  upset,  his  wagon-bed  fell  on  top  of  him,  his  horse  ran  away, 
and  there  was  a  general  smash-up  of  his  wagon.  The  injury  to  the 
plaintiff  was  not,  however,  occasioned  by  the  running  of  his  horse,  but 
by  the  collision  with  the  butcher's  wagon.  One  of  the  men  in  the 
butcher's  wagon,  who  was  a  witness  for  the  plaintiff,  testified  that 
said  wagon  was  driven,  at  the  time  of  the  accident,  at  the  rate  of  ten 

juJUaa^  to  fifteen  miles  an  hour.     AH  of  the  other  witnesses  who  testified  on 

C/:m\  ^Vi/n-w^t^'^  point  concur  in  the  statement  that  said  wagon  was  driven  very 
fast.  A  witness  for  plaintiff,  who  saw  the  whole  occurrence,  stated 
that  the  team  was  going  at  the  rate  of  fifteen  miles  an  hour,  and  did 
not  check  speed  until  they  were  stopped  by  the  collision.  Another 
witness  stated  that  the  team  was  traveling  "at  a  great  rate,"  and 

Aaaajm^       "terrible  fast."    There  was  a  city  ordinance  in  force  at  the  time  of  the 
\L.  accident  prohibiting  the  driving  of  any  vehicle  in  any  street  of  the  city 

♦  kJ^^  t  faster  than  at  the  rate  of  six  miles  an  hour,  or  driving  "in  such  manner 

C'  as  to  come  in  collision  with  or  strike  any  other  person  or  object." 

The  plaintiff  claims  that  the  city  is  liable  for  his  injur es^,  because  it 
permitted  the  street-car  tracks  which  were  in  the  street  to  become 
out  of  repair  to  such  an  extent  thatjth^e  ironrails  were  so  much  above 
the  surface  of  the  street  tfiat,  as  the  vehicles  ;ii)pr()aclH(l  each  other^ 
the  plaintiff  and  the  driver  of  the  butcher's  wagon  could  not  turn  out 
so  as  to  avoid  the  collision,  because  theyc^uld  not  pull  the  wlucls 
of_jthe^  wagons  oyer  the  rails,  although  tjiey  endea\()i((l  To  do  soj 
that  the  wheels  of  the  wagons  slid  along  the  rails,  and  thus  caust'(i^the 
collision.  The  defendant  requested  the  court  to  give  to  the  jury  the 
following,  among  other  instructions: 

"If  the  jury  find  from  the  e^'idence  that  the  accident  by  which  the 
plaintiff  was  injured  was  caused  by  the  negligence  of  the  city  in  not 
keeping  its  street  in  repair,  combined  witli  tlie  acts  of  a  third  party 
for  which  the  city  was  not  responsible,  and  would  not  have  hap- 
pened but  for  the  acts  of  such  third  party,  then  the  city  is  not  liable." 
"  If  the  jury  find  from  the  exddence  that,  although  the  defendant  was 
negligent  in  keeping  its  streets  in  repair  at  the  time  and  place  where 


^ECT.  v.]  DE    CAMP   V.    SIOUX    CITY.  /  459 

the  accident  occurred,  the  accident  would  not  have  happened  to  the 
plaintiff  by  reason  thereof  wathout  the  driving  of  the  team  of  lbs 
upon  the  street-railway  track  in  the  manner  in  which  it  was  driven, 
and  that  the  driver  of  said  team  and  wagon  of  said  lbs,  in  driving  upon 
said  railway  track  at  the  time  and  in  the  manner  and  at  the  rate  of 
speed  he  did,  was  not  using  ordinary  care,  then  the  defendant  is  not 
liable." 

These  instructions  were  refused,  and  the  court,  on  its  own  motion, 
charged  the  jury,  as  to  this  feature  of  the  case,  as  follows : 

"The  jury  are  instructed  that,  in  general,  the  negligence  of  third 
parties,  concurring  with  that  of  the  defendant  to  produce  an  injury, 
is  no  defense;  but  if  the  jury  find  from  the  e\'idence  that  the  accident 
in  question  was  caused  or  occasioned  by  the  negligence  or  carelessness 
of  the  driver  of  the  team  that  collided  with  plaintiff's  team,  without 
any  fault  or  negligence  on  the  part  of  defendant  concurring  therein, 
then  the  plaintiff  cannot  recover;  but  if  you  find  that  the  defendant 
was  negligent,  under  this  charge,  in  permitting  the  defect  in  the  street 
at  the  time  of  the  accident,  and  at  the  place  as  alleged,  and  that  such 
negligence  and  defect  contributed  to  produce  and  occasion  the  injury 
in  question  then  the  fact  that  the  driver  of  the  wagon  colliding  with 
plaintiff's  team  was  negligent  would  not  defeat  plaintiff's  right  to 
recover." 

The  defendant  insists  that  these  rulings  of  the  court  are  erroneous 
and  we  think  his  position  must  be  sustained.  As  we  have  said,  there^  v? 
is  no  question  but  that  the  butcher's  wagon  was  driven  in  a  careless  and^^A^' 
negligent  manner.  Not  only  this,  its  rate  of  speed  was  reckless,  dan- 
gerous, unlawful  and  criminal.  Under  the  ordinances  of  the  city  it> 
driver  was  liable  to  a  fine  of  one  hundred  dollars,  or  imprisonment 
for  thirty  days.  The  effect  of  the  coUision  was  perhaps  stronger 
evidence  of  the  reckless  conduct  of  the  driver  than  the  testimony  of 
the  witnesses.  No  such  a  general  smash-up  would  have  occurred  if 
the  butcher's  wagon  had  been  driven  as  it  ought  to  have  been.    Under  _ 

the  undisputed  facts  of  the  case,  conceding  that  the  street  was  out  of  ,  ^  /  j  ^ii^J/\ 
repair,  the  plaintiff,  to  say  the  least,  received  his  injuries  by  reason  of  ^^ 

the  combined  negligent  acts  of  the  city  and  the  driver  of  the  butcher's 
wagon.  More  than  this,  the  reckless  driving  was  the  immediate 
and  proximate  cause  of  the  injury.  There  is  no  warrant  in  the  evidence 
for  a  finding  that,  if  the  team  had  been  driven  at  a  lawful  and  proper 
rate  of  speed,  the  collision  would  have  nevertheless  injured  the  plain- 
tiff.  This  being  so,  the  condition  of  the  street  was  not  the  direct  and  j  fp*., 
proximate  cause  of  the  injury.  Whatever  the  rule  may  be  in  other  ^ 
states,  we  think  that  the  law  in  this  state  is  settled  that,  under  such 
circumstances,  there  can  be  no  recovery  against  the  city.  See  Dubuque 
Wood  &  Coal  Ass'n  v.  City  of  Dubuque,  30  Iowa,  184,  and  Knapp 
V.  Sioux  City  &  Pac.  Ry.  Co.,  65  Iowa,  91.  Reversed} 

»  See  also  Sweet  v.  Perkins,  196  N.  Y.  482,  90  N.  E.  .50. 


(^ 


460       WASHINGTON   &   GEORGETOWN  R.  R.  CO.  V.  HICKEY.       [CIIAP.  III. 


WASHINGTON  &  GEORGETOWN  RAILROAD  CO.  v.  HICKEY. 
Supreme  Court  of  the  United  States,  1897. 

[Reported  166  U.  S.  521.] 

Peckham,  J.,  delivered  the  opinion  of  the  court. 

This  action  was  brought  by  the  defendants  in  error,  who  are  hus- 
band and  wife,  to  recover  from  the  defendants  (the  one  being  a  horse 
car  company  and  the  other  a  steam  railroad  company)  damages  for 
personal  injuries  sustained  by  the  wife  on  account  of  the  alleged  neg- 
ligence of  the  servants  of  the  defendants.  The  facts  of  the  negligence 
were  alleged  in  the  declaration,  and  each  defendant  filed  a  plea  of  not 
guilty,  upon  which  issue  was  joined.  A  trial  was  had  in  the  Supreme 
Court  of  the  District  of  Columbia,  resulting  in  a  verdict  for  the  plain- 
tiffs, the  judgment  upon  which  having  been  affirmed  by  the  Court 
of  Appeals,  the  defendants  have  brought  the  case  here  for  review. 

On  the  trial  e\ndence  was  given  tending  to  show  these  facts:  Mrs. 
Hickey,  one  of  the  plaintiffs,  who  was  living  with  her  husband  in  the 
city  of  Washington,  left  her  home  therein  on  the  morning  of  the  12th 
day  of  August,  1889,  and  took  a  street  car  of  the  defendant  horse  rail- 
road company  at  the  corner  of  Pennsylvania  Avenue  and  Seventh 
Street  for  the  purpose  of  going  south  along  the  last-named  street;  the 
car  was  a  summer  car  and  crowded  with  people  going  to  the  river  on 
an  excursion ;  she  sat  on  the  outside  of  the  third  seat  in  the  front  of  the 
car  and  in  a  very  small  space;  the  people  seemed  in  a  hurry  and  some 
of  them  called  out  frequently  to  the  driver  to  "hurry  up";  upon 
coming  to  the  crossing  of  Seventh  Street  and  Maryland  Avenue,  where 
the  car  tracks  of  the  two  corporations  intersect  each  other,  the  steam 
cars  were  seen  approaching  the  intersection  at  quite  a  rapid  rate; 
the  street  car  stopped  upon  coming  to  the  crossing,  as  the  railroad  gates 
were  lowered;  then  and  before  the  steam  train  came  on  they  were  raised, 
and  the  street  car  was  started,  and  after  it  got  on  the  track  of  the 
steam  cars  the  gates  were  again  lowered,  shutting  in  the  street  car,  the 
gates  coming  down,  one  on  the  car  and  one  just  behind  the  horses. 
W^hen  the  street  car  entered  upon  the  steam  car  crossing,  the  train  on 
the  tracks  of  the  latter  company  was  still  moA-ing  quite  rapidly  towards 
the  crossing  and  but  a  short  distance  away  and  in  plain  sight  from 
the  horse  car;  after  getting  partially  upon  the  steam  railroad  track,  the 
gates,  as  stated,  came  down,  and  then  they  were  again  raised,  and  the 
driver  of  the  horse  car  whipped  up  his  horses  and  the  car  got  across. 
Before  the  horse  car  had  crossed  the  tracks,  the  steam  cars  were  coming 
pretty  fast;  the  men  who  were  sitting  down  in  the  horse  car  all  got  up 
and  the  women  commenced  screaming;  the  people  on  the  horse  car 
rushed  to  get  off,  and  Mrs.  Hickey  was,  in  the  course  of  the  excitement 
and  commotion,  pushed  off  the  car  and  was  badly  and  permanently  in- 
jured; when  she  fell,  the  steam  cars  were  corning  down  and  the  horse 


SECT,  v.]      WASHINGTON   &   GEORGETOWN    R.  R.  CO.  V.  HICKEY.  461 

car  (the  gates  having  been  raised)  was  then  driven  across  to  the  other 
side;  the  train  was  so  close  to  the  horse  car  that  it  just  got  off  the  track 
in  time  to  escape  being  run  over,  while  Mrs.  Hickey  says  she  was 
so  near  the  steam  car  tracks  when  the  train  passed  that  she  felt  the  air 
from  the  engine  upon  her  head. 

One  of  the  witnesses  said  that  the  driver  of  the  street  car  first  noticed 
the  train  when  he  was  about  50  feet  from  the  steam  car  track.  His  car 
was  moving  at  the  rate  of  four  and  a  half  to  five  miles  an  hour,  and  the 
train  was  then  between  Eighth  and  Ninth  streets,  about  300  feet  from 
Seventh  Street.  The  driver  wanted  to  cross  the  steam  car  tracks  before 
the  gate  went  down,  and  thought  he  could  do  so  without  danger;  he 
did  not  see  that  the  gates  were  being  lowered  as  he  approached,  and 
did  not  put  on  the  brakes  or  make  other  effort  to  stop  the  car  until 
"he  got  the  bell."  The  gates  were  once  lowered  and  then  raised  to 
let  the  car  pass,  and  then  they  were  again  lowered,  and  it  was  when 
they  were  lowered  the  second  time  that  they  came  down  between  the 
car  and  the  horses,  penning  the  car  in  on  the  steam  track.  The  gates 
were  raised  again,  and  the  driver  succeeded  in  getting  the  horse  car 
across  the  track  before  the  train  approached. 

The  counsel  for  the  horse  car  company  claimed  that  the  cause  of  the     , 
accident  was  the  commotion  immediately  preceding  it,  and  by  reason    '        ,      ; 
of  which  the  plaintiff  was  pushed  from  the  car  and  injured,  and  the    ^^^^  /--'  v-aX 
question  was,  what  caused  the  commotion?     He  urged  that  the  com-  CiA.  t^ 

motion  was  caused  by  the  improper  and  negligent  lowering  of  the  gates 
at  the  time  when  they  penned  the  horse  car  between  them  and  prevented 
its  progress  across  the  tracks  of  the  steam  car  company,  and  that  if  the 
gates  had  not  been  thus  lowered  the  horse  car  would  have  had  plenty 
of  time  to  cross,  and  there  would  have  been  no  commotion  and  no  acci- 
dent. He,  therefore,  made  several  requests  to  the  court  to  charge 
the  jury  upon  that  subject.  The  point  of  such  requests  was  that  if  the 
jury  should  find  that  the  commotion  and  confusion  which  led  to  the 
accident  were  caused  by  the  sudden  and  negligent  lowering  of  the 
gates  upon  the  street  car,  which  the  driver  of  that  car  had  no  reason 
to  believe  would  be  thus  lowered,  and  if  the  driver  could  have  crossed 
in  safety  but  for  such  lowering,  then  the  horse  car  company  was  not 
responsible,  and  no  recovery  could  be  had  against  it. 

A  further  request  was  made  to  charge  that  there  was  no  e\ndence 
that  the  management  of  the  horse  car  entered  into  or  contributed  to  the 
negligence  of  the  gatekeeper,  and  if  the  jury  should  find  that  the  injury 
was  caused  by  the  negligence  of  the  gatekeeper,  the  verdict  must  be 
in  favor  of  the  horse  car  company;  also,  that  if  the  jury  should  find 
that  the  horse  car  would  have  passed  the  steam  car  track  without  in- 
jury to  the  plaintiff  except  for  the  lowering  of  the  gates  upon  the  horse 
car,  and  that  the  lowering  was  the  cause  of  the  injury  and  was  an 
act  of  negligence  on  the  part  of  the  gatekeeper,  then  the  horse  car 
company  was  not  responsible  for  the  injury;  also,  that  if  the  jury 


462      WASHINGTON    &   GEOKGETOWN    R.  R.  CO.  V.  HICKEY.       [CHAP.  III. 

found  the  injury  to  have  been  the  result  of  negligence  of  the  gatekeeper 
in  the  management  of  the  gates,  and  that  but  for  such  negligence  the 
injury  would  not  have  been  sustained  by  the  plaintiff,  and  that  the 
driver  of  the  horse  car  did  not  know  and  had  no  reason  to  believe 
that  the  gatekeeper  would  be  negligent,  then  the  plaintiffs  were  not 
entitled  to  recover  against  the  horse  car  company. 

The  refusal  of  the  court  to  charge  as  requested  was  excepted  to 
and  is  now  made  a  ground  for  the  reversal  of  the  judgment  by  this 
court.  In  his  argument  here  the  counsel  for  the  horse  car  company 
said:  "The  gist  of  all  of  which  instructions  is  that  no  matter  whether 
it  was  negligence  or  not  for  the  street  car  company  to  drive  its  car  upon 
the  steam  car  track,  yet,  if  the  jury  found  that  it  was  the  lowering  of 
the  gates  (and  not  the  negligence,  if  it  were  such,  in  going  upon  the 
steam  track)  that  caused  the  injury,  then  they  should  find  for  the 
street  car  company.  The  gist  of  the  instructions  is  that  it  was  the  low- 
ering of  the  gates  that  caused  the  injury." 

The  vice  in  all  this  argument,  as  we  think,  consists  in  the  attempted 
separation  into  two  distinct  causes  (remote  and  proximate)  of  what 
in  reality  was  one  continuous  cause.  It  leaves  out  of  view  the  action 
of  the  driver  of  the  street  car  as  to  whether  he  was  or  was  not  negligent, 
provided  the  jury  should  say  the  accident  would  not  have  happened  if 
the  gates  had  not  been  improperly  lowered.  That  is,  although  the  jury 
should  find  that  the  act  of  the  driver  was  negligent,  and  by  reason  of 
that  negligence  his  car  was  placed  in  such  a  position  that  the  negligent 
lowering  of  the  gates  concurred  with  his  action  in  producing  the  in- 
jury, the. street  car  company  must  be  absolved,  if  the  jury  should  be 
able  to  say  that  but  for  such  negligent  lowering  of  the  gates  (which 
the  driver  of  the  horse  car  had  no  reason  to  foresee)  the  accident  would 
not  have  happened.  This  is  an  attempt  to  separate  that  which  upon  the 
facts  in  this  case  ought  not  to  be  separated.  The  so-called  two  negli- 
gent acts  were,  in  fact,  united  in  producing  the  result,  and  they  made 
one  cause  of  concurring  negligence  on  the  part  of  both  companies. 
They  were  in  point  of  time  substantially  simultaneous  acts  and  parts 
of  one  whole  transaction,  and  it  would  be  improper  to  attempt  a  separa- 
tion in  the  manner  asked  for  by  the  counsel  for  the  horse  car  company. 

In  this  connection  the  court  did  charge  the  jury  as  follows : 

"It  is  claimed  by  the  counsel  for  the  Washington  and  Georgetown 
Railroad  Company  that  there  was  ample  time  for  its  cars  to  pass  over 
the  track  of  the  Baltimore  and  Potomac  Railroad  Company  before 
the  train  of  the  latter  would  reach  the  point  of  intersection  of  the 
two  tracks,  and  that  as  the  car  of  the  former  company  approached 
the  track  of  the  latter  the  gates  were  up,  and  that  the  horses  drawing 
the  car  had  reached  the  steam  car  track  when  the  gatekeeper  suddenly 
lowered  the  gates,  and  thereby  produced  whatever  alarm  or  confusion 
the  evidence  shows  ensued  among  the  passengers,  including  the  plain- 
tiff, on  the  street  car. 


SECT,  v.]      WASHINGTON   &   GEORGETOWN   K.  R,  CO.  V.  HICKEY.         463 

"  If  you  find  the  evidence  establishes  these  facts,  as  thus  claimed  by 
the  Washington  and  Georgetown  Railroad  Company,  it  would  be  en- 
titled to  your  verdict  in  its  favor." 

The  alleged  negligence  of  the  horse  car  driver  consisted  in  endeavor- 
ing to  cross  at  all,  under  the  circumstances,  until  after  the  passage 
of  the  train  on  the  steam  railroad.  Upon  the  e\adence  the  jury  would 
have  been  justified  in  finding  that  he  had  no  right  to  indulge  in  any 
close  calculation  as  to  time  in  attempting  to  cross  the  steam  car  tracks 
before  the  train  thereon  reached  the  point  of  intersection;  that  it  was 
a  negligent  act  in  making  the  attempt  under  a  state  of  facts  where  the 
least  interruption  or  delay  in  the  crossing  over  by  the  horse  car  would 
probably  lead  to  an  accident.  In  this  view  of  the  evidence  and  finding, 
it  was  not  material  that  the  driver  had  no  ground  to  expect  the  partic- 
ular negligent  act  of  lowering  the  gates  and  the  consequent  obstruc- 
tion to  his  passage  across  the  steam  car  tracks,  or  that  he  would  have 
had  time  to  cross  if  the  delay  thus  occasioned  had  not  occurred.  The 
jury  had  the  right  to  find  it  was  negligent  to  cause  his  car  to  be  so 
placed  that  any  delay  might  bring  on  a  collision.  The  apparent  lia- 
bility to  accident,  if  any  delay  should  occur  from  any  cause  whatever, 
was  plain,  and  such  fact  would  support  a  finding  of  negligence  in  at- 
tempting to  cross  before  the  steam  car  train  had  passed.  In  such  case 
it  would  be  no  excuse  that  the  particular  cause  of  a  possible  or  prob- 
able delay,  viz.,  the  lowering  of  the  gates,  was  not  anticipated.  The 
important  fact  was  that  there  existed  a  possibility  of  delay,  and,  there- 
fore, of  very  great  danger,  and  that  danger  ought  to  have  been  antici- 
pated and  avoided.  A  delay  might  be  occasioned  at  that  time  by  an 
almost  infinite  number  of  causes ;  the  horses  might  stumble,  the  harness 
might  give  way,  the  car  might  jump  the  truck;  a  hundred  different 
things  might  happen  which  would  lead  to  a  delay,  and  hence  to  the 
probability  of  an  accident.  It  was  not  necessary  that  the  driver  should 
foresee  the  very  thing  itself  which  did  cause  the  delay.  The  material 
thing  for  him  to  foresee  was  the  possibility  of  a  delay  from  any  cause, 
and  this  he  ought  naturally  to  think  of,  and  a  failure  to  do  so,  and  an 
attempt  to  cross  the  tracks,  might  be  found  by  the  jury  to  be  negligeufe, 
even  though  he  would  have  succeeded  in  getting  across  safely  on  the 
particular  occasion  if  it  had  not  been  for  the  action  of  the  gatekeeper  in 
wrongfully  lowering  the  gates.  The  act  of  the  driver  being  a  negligent 
act,  and  that  act  being  in  full  force  and  in  the  very  process  of  execution 
at  the  time  the  accident  occurred,  which  accident  would  not  have  hap- 
pened but  for  such  negligent  act,  the  fact  that  another  negligent  act  of  a 
third  party  contributed  to  the  happening  of  the  accident  would  not  ab- 
solve the  horse  car  company.  The  negligent  act  of  the  horse  car  driver 
joined  with  and  became  a  part  of  the  other  act  in  wrongfully  lowering  the 
gates,  as  described,  and  both  acts  constituted  but  one  cause  for  the  com- 
motion which  naturally  resulted  therefrom,  and  on  account  of  both  of 
these  acts,  as  parts  of  a  whole  transaction,  the  injury  occurred. 


464:      WASHINGTON   &   GEORGETOWN   R.  R.  CO.  V.  HICKEY.      [CHAP.  III. 

In  Insurance  Company  v.  Tweed,  7  Wall.  44,  which  was  an  action 
upon  a  poHcy  of  insurance  that  contained  an  exception  against  fire 
that  might  happen  "by  means  of  an  invasion,  insurrection,  riot  or 
ci\al  commotion,  or  any  mihtary  or  usurped  power,  explosion,  earth- 
quake or  hurricane,"  the  insurance  company  was  held  not  liable,  al- 
though the  fire  by  which  the  premises  insured  were  burned  was  not 
directly  caused  by  the  explosion.  The  explosion  occurred  in  another 
warehouse,  by  reason  of  which  a  fire  was  started  that  caught  in 
still  another  building,  and  the  fire  from  that  building  was  com- 
municated to  the  premises  which  were  insured,  and  which  were 
in  that  manner  destroyed  by  the  fire.  The  court  held  that,  as  the 
whole  fire  was  continuous  from  the  time  of  the  explosion,  and  was 
under  full  headway  in  about  a  half  an  hour,  the  loss  by  fire  was  within 
the  exception  contained  in  the  policy,  and  the  insurers  were  not  liable. 
In  that  case  the  question  of  proximate  and  remote  causes  was  alluded 
to,  and  it  was  said,  by  Mr.  Justice  Miller,  that  "  one  of  the  most  val- 
uable of  all  the  criteria  furnished  us  by  the  authorities  by  which  to 
distinguish  the  remote  from  the  proximate  cause  of  damage  was  to 
ascertain  whether  any  new  cause  has  intervened  between  the  fact 
accomplished  and  the  alleged  cause.  If  a  new  force  or  power  has  in- 
ter\-ened,  of  itself  sufficient  to  stand  as  the  cause  of  the  misfortune,  the 
other  must  be  considered  as  too  remote."  In  one  sense  there  was  in 
that  case  a  new  cause  existing  in  the  fact  that  the  explosion  caused  a 
fire  in  another  building  first,  and  that  the  fire  was  carried  by  the  wind 
from  that  building  to  the  building  in  question  and  not  from  the  build- 
ing in  which  the  explosion  occurred,  and  so  it  was  claimed  that  the 
fire  in  the  building  covered  by  the  policy  was  not  directly  caused  by 
the  explosion;  but  the  court  held  that  the  distinction  was  not  well 
founded,  and  that  \\'ithin  the  policy  the  insurers  were  not  liable.  The 
fire,  in  other  words,  occurred  by  means  of  the  explosion,  and  no  new 
cause  could  be  said  to  have  intervened  simply  because  the  premises 
insured  were  burned  by  the  fire  communicated  from  a  third  building. 

The  case  of  Scheffer  v.  Railroad  Company,  105  U.  S.  249,  is  an 
example  of  the  other  side.  It  was  there  held  that  where  the  passenger 
was  injured  by  reason  of  a  railway  collision,  and  as  a  result  of  such 
injury  he  became  disordered  in  mind  and  body,  and  some  eight  months 
after  the  collision  committed  suicide,  his  personal  representatives  could 
not  maintain  an  action  against  the  railway  company  for  his  death,  as  his 
own  act  was  the  proximate  cause  thereof.  It  was  held  that  the  rela- 
tion of  the  negligence  of  the  railroad  company  to  the  death  of  the 
passenger  was  too  remote  to  be  regarded  as  a  cause  of  such  death,  or  to 
justify  a  recovery  against  the  company.  Mr.  Justice  Miller,  in  de- 
livering the  opinion  of  the  court,  said: 

"The  argument  is  not  sound  which  seeks  to  trace  this  immediate 
cause  of  the  death  through  the  pre\aous  stages  of  mental  aberration, 
physical  suflFering  and  eight  months'  disease  and  medical  treatment  to 


SECT,  v.]      WASHINGTON   &   GEOEGETOWN    R.  R.  CO.  V.  HICKEY.  465 

the  original  accident  on  the  railroad.  Such  a  course  of  possible  or 
even  logical  argument  would  lead  l^ack  to  that  'first  great  cause  least 
understood,'  in  which  the  train  of  all  causation  ends. 

"The  suicide  of  Scheffer  was  not  a  result  naturally  and  reason- 
ably to  be  expected  from  the  injury  received  on  the  train.  It  was  not 
the  natural  and  probal>le  consequence,  and  could  not  have  been  fore- 
seen in  the  light  of  the  circumstances  attending  the  negligence  of  the 
officers  in  charge  of  the  train. 

"His  insanity,  as  a  cause  of  his  final  destruction,  was  as  little  the 
natural  or  probable  result  of  the  negligence  of  the  railway  officials, 
as  his  suicide,  and  each  of  these  are  casual  or  unexpected  causes,  in- 
tervening between  the  act  which  injured  him  and  his  death." 

So  in  Carter  v.  Towne,  103  Mass.  507,  and  Da\idson  v.  Nichols,  11 
Allen,  514,  cited  by  counsel,  the  intervention  of  another  and  sufficient 
cause  to  produce  the  result  is  apparent. 

In  the  first  case  whatever  of  fault  there  w^as  in  the  sale  of  the  gun- 
powder by  the  defendant  to  the  boy  became  absolutely  blotted  out 
when,  with  the  knowledge  of  his  aunt,  who  had  the  charge  of  him  and 
the  house  where  he  was  liWng,  it  was  placed  in  the  cupboard,  and  a 
week  afterwards  his  mother  gave  him  some  of  the  powder  and  he  fired 
it  off  with  her  knowledge.  The  fact  that  some  days  later  he  took,  with 
her  knowledge,  more  of  the  powder  and  fired  it  off  and  was  injured  by 
the  explosion,  could  not  in  any  rational  degree  be  said  to  be  caused  by 
the  original  wrongful  sale  of  the  powder. 

In  the  other  case  the  druggist  sold  an  article  harmless  in  itself,  mis- 
taking it  for  another  article,  also  harmless  in  itself,  but  another  person 
afterwards  intermixed  the  article  sold  with  another  article,  making 
thereby  a  dangerous  explosive  from  which  injury  was  suffered.  It 
was  held  that  there  could  be  no  recovery  against  the  druggist,  because 
the  sale  was  not  the  proximate  cause  of  the  accident. 

These  are  plain  cases  of  the  intervention  of  other  and  suffi- 
cient causes  for  the  injuries  sustained  and  where  the  original  actions 
were  too  remote  to  be  regarded  as  causes  of  such  injuries.  The  other 
cases  cited  by  counsel  are  clearly  distinguishable  in  principle  from 
this  one.  It  is  unnecessary  after  what  has  been  said  to  further  com- 
ment on  them. 

We  think  there  was  no  error  in  the  refusal  of  the  court  to  charge 
as  requested,  and  the  exceptions  to  such  refusal  are  therefore  untenalile. 

Another  objection  now  urged  by  the  counsel  for  the  defendant 
railroads  is  to  the  charge  of  the  learned  judge  on  the  subject  of  damages. 
In  response  to  the  request  of  counsel  for  plaintiffs  the  judge  charged 
that  — 

"  If  the  jury  find  from  all  the  evidence  that  the  plaintiffs  are  entitled 
to  recover  in  this  action,  then  they  shall  award  such  damages  icithin  the 
limits  of  the  sum  claimed  in  the  declaration  as  will  fairly  and  reasonably 
compensate  the  plaintiff  Margaret  for  the  pain  and  suffering  caused  to 


466      WASHINGTON  &  GEORGETOWN    K,  R.  CO.  V.  HICKEY.       [CHAP.  III. 

her  by  the  injury  which  she  sustained  and  for  the  injury  to  her  bodily 
health  and  power  of  locomotion,  if  any  such  they  find,  which  she  has 
sustained  in  the  past  and  will  continue  to  sustain  in  the  future  as  a 
natural  consequence  of  said  injury,  and  for  such  internal  injuries  and 
impairment  to  her  physical  health  as  they  may  find  to  be  established 
by  the  evidence." 

And  the  judge  also  charged: 

"Your  verdict,  if  you  find  for  the  plaintiff,  must  be  a  matter  to  be 
fixed  by  you  in  the  exercise  of  a  sound  discretion,  subject,  of  course,  to 
the  limits  placed  in  the  declaration  of  thirty  thousand  dollars." 

The  objection  which  the  counsel  makes  to  this  charge  is  that  it 
amounted  to  a  direct  intimation  to  the  jury  that  the  finding  of  a  ver- 
dict for  the  sum  named  in  the  declaration  would  not  be  excessive,  and 
that  the  jury  were  misled  by  it,  for  they  brought  in  a  verdict  for  the 
plaintiff  for  $12,000,  which  the  court  actually  found  to  be  excessive, 
and  directed  that  the  verdict  should  be  set  aside  unless  plaintiffs 
consented  to  remit  $6000,  which  they  did. 

But  we  fail  to  find  from  the  record  that  any  exception  was  taken 
to  the  charge  of  the  judge  upon  this  subject  of  damages.  We  do  not 
intimate  that  an  exception  would  have  been  good,  if  it  had  been  taken; 
it  is  sufficient  that  no  exception  raises  the  question,  and  we  do  not 
therefore  either  discuss  or  decide  it. 

It  is  also  objected  that  there  is  a  variance  between  the  declaration 
and  the  proof,  and  that  the  trial  court  did  not  try  the  issues  formed  by 
the  pleadings,  but  went  beyond  them  and  made  a  new  case  for  the 
plaintiffs. 

The  declaration  alleges  that  the  female  plaintiff  was  pushed  and 
shoved  from  her  seat  in  the  car  and  thrown  violently  to  the  ground  and 
was  injured  in  that  way.  The  court  charged  the  jury  that  if  they  should 
find  from  the  evidence  that  the  female  plaintiff'  either  jumped  off  the 
car  in  a  reasonable  effort  to  avoid  injury  from  collision,  or  was  pushed 
or  thrown  from  the  car  by  some  other  passenger  or  passengers  en- 
deavoring in  a  reasonable  manner  to  avoid  injury  from  such  collision, 
and  was  thereby  injured,  then  the  plaintiffs  were  entitled  to  recover. 

Upon  this  subject  of  variance  it  was  said  by  Mr.  Chief  Justice  Alvey, 
in  delivering  the  opinion  of  the  Court  of  Appeals  in  this  case,  that  — 

"  Whether  she  [Mrs.  Hickey]  fell  in  consequence  of  a  push  received 
from  some  other  terrified  passenger,  or  in  an  attempt  to  save  herself 
by  jumping  from  the  car,  it  would  make  no  material  difference  in  her 
right  to  recover.  It  is  not  so  much  the  manner  of  leaving  the  car  as  it 
was  the  exciting  cause  that  operated  upon  her,  either  directly  and  caused 
her  to  jump  to  save  herself,  or  upon  others  whose  actions  were  justi- 
fiably incited  by  the  impending  danger,  and,  by  natural,  impulsive 
movement,  forced  her  from  the  car.  In  either  case,  her  fall  to  the 
ground  and  injury  were  the  direct  consequences  of  the  apparent  and 
impending  danger  produced  by  the  negligent  conduct  of  the  defendants' 


SECT,  v.]  CITY    OF   LOUISVILLE    V.    HAKT.  467 

servants  and  employees.  There  is,  therefore,  no  such  variance  as  should 
defeat  the  plaintiffs'  right  to  recover,  if  the  facts  were  found  to  exist, 
as  we  must  assume  they  were,  according  to  the  hypothesis  of  the  in- 
struction given  by  the  court.  It  is  said  by  the  Supreme  Court  of  the 
United  States  that  no  variance  ought  ever  to  be  regarded  as  material 
where  the  allegation  and  proof  sustantially  correspond,  or  where  the 
variance  was  not  of  a  character  which  could  have  misled  the  defendant 
at  the  trial.  Nash  v.  Towne,  5  Wall.  689,  697.  Here  the  variance  that 
is  supposed  to  exist  was  mainly  produced  by  the  proof  introduced  on 
the  part  of  the  defendants,  and  therefore  there  was  no  surprise  to 
them,  and  it  is  not  pretended  that  they  were,  in  any  manner,  injured 
by  the  supposed  variance.  There  is  in  reality  no  substantial  variance 
between  the  allegations  and  proof." 

We  think  this  is  a  correct  statement,  and  nothing  more  need  be 
said  upon  the  subject. 

These  are  all  the  questions  raised  by  the  counsel  for  the  horse  rail- 
road company  which  we  think  it  necessary  to  mention. 
-  W^e  have  carefully  examined  the  various  points  raised  by  the  learned 
counsel  for  the  steam  railroad  company,  and  are  of  opinion  that  they 
show  the  existence  of  no  material  errors  in  the  conduct  of  the  trial 
which  could  or  in  any  way  did  prejudice  the  company.  There  was 
proper  and  sufficient  e\'idence  submitted  to  the  jury  on  the  question 
of  the  employment  of  the  gateman  by  the  steam  railroad  company. 
Although  there  was  no  direct  evidence  of  an  actual  contract  of  employ- 
ment entered  into  between  the  company  and  the  gateman,  yet  there 
was  ample  evidence  from  which  an  inference  of  such  employment  might 
properly  have  been  drawn  by  the  jury.  We  also  think  the  duties 
of  a  person  so  employed  were  correctly  stated  to  the  jury.  The  ques- 
tion whether  the  gateman  neglected  to  properly  discharge  those  duties 
was  submitted  to  the  jury  in  a  manner  to  which  no  exception  could 
be  taken. 

Upon  an  examination  of  the  whole  case,  we  find  no  error  prejudicial 
to  either  company,  and  the  judgment  against  both  must  be 

Affirmed} 

CITY  OF  LOUISVILLE  v.   HART. 

Court  of  Appeals  of  Kentucky,  19n. 

[Reported  142  Ky.  171.] 

Carroll,  J.  Edward  Hart,  while  driving  a  one-horse  wagon  on 
Payne  Street,  in  the  city  of  Louisville,  was  throwTi  from  it  in  front  of 
a  street  car  and  killed  by  the  car.  To  recover  damages  for  his  death, 
the  administrator  brought  an  action  against  the  city  of  Louisville  and 
the  Louisville  Railway  Company,   charging  that  the  accident  that 

•  Townsend  v.  Boston,  187  Mass.  283,  72  N.  E.  991;  Galveston  H.  &  S.  A.  Ry. 
T.  Vollrath,  (Tex.  Civ.  App.)  89  S.  W.  279.  —  Ed. 


468  CITY   OF   LOUISVILLE    V.    HART.  [CHAP.  III. 

resulted  in  his  death  was  due  to  the  negUgence  of  the  city  in  faihng 
to  keep  the  street  at  the  point  of  the  accident  in  a  reasonably  safe 
condition  for  public  travel,  and  to  the  high  and  dangerous  rate  of 
speed  at  which  the  street  car  was  running  and  the  negligence  in  its 
operation.^     ... 

Another  reason  for  reversal  is  that  the  condition  of  the  street  was 
not  the  proximate  cause  of  the  death  of  Hart,  and  therefore  the  city 
was  not  liable.  The  question  of  proximate  cause  in  negligence  cases 
has  come  before  the  courts  of  the  country  in  innumerable  cases,  and 
as  a  result  there  is  a  large  body  of  law  devoted  to  its  consideration.  But 
there  is  really  no  diflFerence  of  opinion  as  to  the  general  principles  upon 
which  this  doctrine  rests.  It  is  agreed  on  all  sides  that  the  damage 
suffered  must,  as  stated  by  Cooley  on  Torts,  p.  68,  "  be  the  legitimate 
sequence  of  the  thing  amiss.  ...  In  other  words,  the  law  always  re- 
fers the  injury  to  the  proximate,  not  to  the  remote,  cause.  The  explana- 
tion of  this  maxim  may  be  thus  given:  If  the  injury  has  resulted 
in  consequence  of  a  certain  wrongful  act  or  omission,  but  only  through 
or  by  means  of  some  intervening  cause,  from  which  last  cause  the  in- 
jury followed  as  a  direct  and  immediate  consequence,  the  law  will  re- 
fer the  damage  to  the  last  or  proximate  cause,  and  refuse  to  trace  it  to 
that  which  was  more  remote." 

Or,  as  stated  by  Shearman  &  Redfield  on  Negligence,  §  26 :  "  The 
proximate  cause  of  an  event  must  be  understood  to  be  that  which 
in  a  natural  and  continuous  sequence,  unbroken  by  any  new  inde- 
pendent cause  produces  that  event,  and  without  which  that  event  would 
not  have  occurred.  Proximity  in  point  of  time  or  space,  however,  is 
no  part  of  the  definition.  That  is  of  no  imjx)rtance,  except  as  it  may 
afford  evidence  for  or  against  proximity  of  causation;  that  is,  the  proxi- 
mate cause  which  is  nearest  in  the  order  of  responsible  causation."  The 
difficulty  has  always  come  up  when  it  has  been  attempted  to  apply 
these  principles  to  a  state  of  facts  presenting  more  than  one  contrib- 
uting cause  or  act  that  resulted  in  the  wrong  or  injury  complained  of. 
Of  course,  when  there  is  only  one  cause  to  which  the  injury  or  wrong 
is  directly  tracealile,  as  when  a  person  intentionally  shoots  another,  or 
where  a  passenger  on  a  railway  train  is  injured  by  a  defect  in  the  car 
in  which  he  is  riding,  there  is  no  difficulty  in  determining  what  was  the 
proximate  cause  of  the  injury.  But  in  cases  in  which  there  is  more  than 
one  cause  or  act  connected  with  or  concerned  in  producing  the  injury 
the  books  are  full  of  decisions  determining  which  one  of  the  causes  or 
acts  was  the  proximate  cause.  As  a  result  of  the  infinite  variety  of 
cases  presenting  this  question,  it  is  easy  to  find  authority  that  will 
apparently  support  each  side  in  almost  any  controversy  in  which  a 
doubtful  question  arises.  To  attempt  to  reconcile  these  cases  would 
be  the  height  of  folly.  In  truth,  when  carefully  studied,  there  is  really 
little  conflict  between  them.  The  apparent  conflict  grows  out  of  the 
'  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT,  v.]  CITY   OF    LOUISVILLE   V.    HART.  469 

diflFerence  in  facts  to  which  must  be  applied  the  principle  that  con- 
trols. Or,  as  stated  by  Justice  Miller  in  Louisiana  Mutual  Ins.  Co.  v. 
Tweed,  7  Wall.  44,  19  L.  ed.  65,  in  speaking  of  this  subject:  "It  would 
be  an  unprofitable  labor  to  enter  into  an  examination  of  these  cases.  If 
we  could  deduce  from  them  the  best  possible  expression  of  the  rule,  it 
would  remain  after  all  to  decide  each  case  largely  upon  the  special  facts 
belonging  to  it,  and  often  upon  the  very  nicest  discriminations." 

No  case  can  be  confidently  cited  as  authority  unless  its  facts  are 
similar  to  the  facts  of  the  case  under  consideration,  and  so  it  would  not 
be  useful  to  review  the  many  cases  cited  by  counsel  for  appellant,  as 
few  of  them  are  directly  in  point.  To  again  restate  briefly,  we  have 
this  state  of  facts:  Hart  on  account  of  defects  in  the  street  that  ren- 
dered it  unsafe  for  travel  was  thrown  from  his  wagon,  and  fell  on  the 
street  car  track  immediately  in  front  of  an  approaching  car  that  was 
running  at  a  dangerous  and  negligent  rate  of  speed,  and  was  run  over 
and  killed  by  the  car.  Now  we  may  assume  that,  if  the  street  had  been 
reasonably  safe,  he  would  not  have  been  thrown  from  his  wagon,  and, 
of  course,  would  not  have  been  killed.  We  may  further  assume  that  if 
the  street  car  had  been  operated  with  ordinary  care  that  it  could 
have  been  stopped  before  striking  him,  and  so,  although  the  defective 
condition  of  the  street  caused  him  to  fall  on  the  track,  he  would  yet 
have  escaped  injury  except  for  the  negligence  in  the  operation  of  the 
car.  We  have,  then,  two  approximately  concurring  acts  of  negligence 
by  two  independent  agencies  that  brought  about  his  death.  Neither 
act  of  negligence  in  itself  without  the  cooperation  of  the  other  would 
have  harmed  him.  On  the  other  hand,  however  fast  the  car  was  going, 
unless  he  had  been  thrown  in  front  of  it,  he  would  not  have  been  killed. 
On  the  other  hand,  although  thrown  on  the  car  track  by  the  bad  street, 
he  would  have  escaped  death  if  it  had  been  prudently  operated.  The 
question  now  is  which  of  these  acts  of  negligence  was  the  proximate 
cause  of  his  death.     W^e  think  that  both  of  them  may  be  so  treated. 

Two  agencies  acting  entirely  independent  of  each  other  as  in  this 
case  may  jointly  and  concurrently  be  the  proximate  cause  of  an  injury, 
when  it  would  not  have  happened  except  for  the  concurrence  at  ap- 
proximately the  same  time  and  place  of  the  two  negligent  acts.  Thus, 
in  Cooley  on  Torts,  p.  78,  it  is  said :  "  If  the  damage  has  resulted  di- 
rectly from  concurrent  wrongful  acts  or  neglects  of  two  persons,  each 
of  these  acts  may  be  counted  on  as  the  wrongful  cause  and  the  parties 
held  responsible  either  jointly  or  severally  for  the  injury."  In  Shear- 
man &  Redfield  on  Negligence,  §  39,  the  rule  is  thus  stated :  "  It  is 
also  agreed  that  if  the  negligence  of  the  defendant  concurs  with  the 
other  cause  of  the  injury,  in  point  of  time  and  place,  or  otherwise  so 
directly  contributes  to  the  plaintiff's  damage  that  it  is  reasonably 
certain  that  the  other  cause  alone  would  not  have  sufficed  to  produce 
it,  the  defendant  is  liable  notwithstanding  he  may  not  have  anticipated 
or  been  bound  to  anticipate  the  interference  of  the  superior  force 


470  CITY    OF    LOUISVILLE    V.   HAKT.  [CIIAr.  Ill- 

which  concurring  with  his  own  neghgence  produced  the  damage." 
In  §  346  the  same  authors  say:  "The  general  rule  in  all  states  is 
that  where  two  causes  combine  to  produce  an  injury  to  a  traveller  upon 
a  highway,  both  of  which  are  in  their  nature  proximate,  the  one  being 
a  culpal)le  defect  in  the  highway,  and  the  other  some  occurrence  for 
which  neither  party  is  responsible,  the  municipality  is  liable,  provided 
the  injury  would  not  have  been  sustained  but  for  such  defect." 

As  illustrative  cases  on  the  subject  treated  of  by  these  standard 
authors,  we  mention  out  of  a  number  the  following: 

In  Louis\-ille  Home  Telephone  Co.  v.  Gasper,  123  Ky.  128,  93  S.  W. 
1057,  9  L.  R.  A.  (N.  S.)  548,  the  facts  were  these:  Gasper  while  walking 
in  a  public  alley  adjoining  his  home  in  the  city  of  Louisville  was  knocked 
down  and  crushed  by  and  under  a  heavy  wagon  owned  and  operated 
by  Dressle.  The  Louisville  Home  Telephone  Company  maintained 
in  the  alley  a  telephone  pole,  to  which  it  negligently  strung  and  main- 
tained a  guy  wire,  running  obliquely  from  the  top  thereof  to  a  block 
in  the  ground,  so  as  to  form  and  cause  a  dangerous  obstruction  to  pe- 
destrains  and  vehicles  using  or  passing  through  the  alley.  The  wagon 
of  Dressle,  while  being  driven  through  the  alley  by  his  servants  in  a 
negligent  manner,  ran  upon  and  against  appellant's  guy  wire,  which 
caused  the  wagon  to  be  overturned  and  thrown  upon  Gasper,  resulting 
in  his  injuries.  Under  these  facts,  the  contention  of  the  telephone  com- 
pany was  that  Gasper  was  injured  solely  by  the  wagon  falling  upon 
him,  and  that  its  negligence,  if  any,  was  too  remote  to  have  produced 
the  injury  without  an  intervening  cause,  and  therefore  its  negligence 
was  not  the  proximate  cause  of  the  injury.  But  the  court,  rejecting  this 
view,  said :  "  If  the  telephone  company  was  negligent  as  to  the  manner 
in  which  its  guy  wire  was  anchored,  and  it  constituted  a  dangerous 
obstruction  —  that  is,  one  that  was  likely  to  result  in  injury  to  others 
from  an  intervening  cause  —  which,  though  not  in  fact  anticipated  by 
appellant,  would  not  have  happened  but  for  its  earlier  negligence,  it 
cannot  escape  liability,  because  its  negligence  would  in  such  case  be  the 
proximate  cause  of  the  injury.  .  .  .  It  is  also  very  well  settled  that 
when  an  injury  is  caused  by  two  causes  concurring  to  produce  the  result, 
for  one  of  which  the  defendant  is  responsible  and  not  for  the  other,  the 
defendant  cannot  escape  responsibility.  One  is  liable  for  an  injury 
caused  by  the  conciu'ring  negligence  of  himself  and  another,  to  the  same 
extent  as  if  for  one  caused  entirely  by  his  own  negligence." 

In  Walrod  v.  Webster  County,  lio'lowa,  349,  81  N.  W.  598,  47  L.  R. 
A.  480,  the  court  had  before  it  a  case  in  which  two  independent  causes 
contributed  to  the  injury,  and  said:  "When  two  causes  combine  to 
produce  an  injury  to  a  traveller  upon  a  highway,  both  of  which  are 
in  their  nature  proximate,  the  one  being  a  culpable  defect  in  the  high- 
way and  the  other  some  occurrence  for  which  neither  is  responsible, 
the  municipality  is  hable  provided  the  injury  would  not  have  been 
sustained  but  for  such  defect.  .  .  .  The  mere  fact  that  some  other 


SECT,  v.]  CITY   OF    LOUISVILLE    V.    HART.  471 

cause  operates  with  the  negligence  of  the  defendant  to  produce  the  in- 
jury does  not  reHeve  it  from  HabiHty.  His  original  wrong  concurring 
with  some  other  cause,  and  both  operating  approximately  at  the 
same  time  and  producing  the  injury,  makes  him  liable,  whether  the 
other  cause  was  one  for  which  the  defendant  was  responsible  or  not." 

In  Lake  v.  Milliken,  62  Me.  240,  16  Am.  Rep.  456,  it  appears  that  the 
defendants  negligently  piled  boards  in  the  traveled  part  of  a  highway, 
and  that  a  stranger  passing  along  with  a  wagon  loaded  with  barrels 
ran  over  these  boards,  producing  a  ratthng  noise,  which  frightened  the 
plaintiff's  horse,  causing  him  to  throw  the  plaintiff  from  his  wagon  and 
injure  him.  In  holding  the  defendants  liable,  the  court  quoted  with 
approval  from  Ricker  v.  Freeman,  50  N.  H.  420,  9  Am.  Rep.  267,  the 
following  statement :  "  We  think  the  principle  is  clearly  established  that 
negligence  may  be  regarded  as  the  proximate  cause  of  an  injury  of 
which  it  may  not  be  the  sole  and  immediate  cause.  If  the  defendant's 
negligent,  inconsiderate,  and  wanton,  though  not  malicious,  act  con- 
curred with  any  other  thing,  person,  or  event,  other  than  the  plaintiff's 
own  fault  to  produce  the  injury,  so  that  it  clearly  appears  that  but 
for  such  wrongful  negligent  act  the  injury  would  not  have  happened, 
and  both  circumstances  are  closely  connected  with  the  injury  in  the 
order  of  events,  the  defendant  is  responsible,  even  though  his  negligent 
wrongful  act  may  not  have  been  the  nearest  cause  in  the  chain  of  events 
or  the  order  of  time." 

Applying  to  the  facts  of  this  case  the  principles  announced,  we  have 
no  difficulty  in  reaching  the  conclusion  that  the  defective  street  was 
one  of  the  proximate  causes  that  resulted  in  the  death  of  Hart,  and 
therefore  an  action  would  lie  against  the  city  as  well  as  the  street  rail- 
way company. 

Another  error  assigned  is  that  the  court  should  have  defined  "  proxi- 
mate cause."  In  our  opinion  a  definition  of  "proximate  cause"  would 
have  confused  rather  than  enlightened  the  jury.  They  were  told  by 
an  instruction  that :  "  If  they  believe  from  the  evndence  that  the  dan- 
gerous and  defective  condition  of  Payne  Street  at  or  about  where  the 
collision  occurred,  if  it  was  dangerous  or  defective,  caused  the  plaintiff's 
decedent  to  be  thrown  from  his  wagon  and  upon  the  track  of  the  Louis- 
ville Railway  Company  and  under  one  of  its  cars,  whereby  he  was  so 
mangled  and  injured  that  he  died  therefrom,  then  the  law  is  for  the 
plaintiff  as  against  the  defendant  city  of  Louisville,  and  the  jury 
should  so  find."  This  instruction  left  it  to  the  jury  to  say  whether 
or  not  the  defect  in  the  street  was  the  cause  of  the  injury  complained 
of,  and  we  do  not  think  an  instruction  defining  or  attempting  to 
define  "proximate  cause"  would  have  aided  the  jury  in  reaching  a 
correct  verdict.  The  trial  court  correctly  determined  as  a  matter  of 
law  that  the  city  was  liable  if  the  defect  in  the  street  brought  about 
the  death  of  Hart,  and  left  to  the  jury  the  question  whether  it  did  or 
not. 


472  REGINA  V.    HAINES.  [CHAP.  III. 

REGINA  V.  HAINES. 

Worcestershire  Assizes.     1847. 
[Reported  2  Carrington  Sf  Kirwan,  368.] 

Manslaughter.  — The  first  count  of  the  indictment  stated  that  the 
prisoner,  in  and  upon  one  James  Shakespeare  did  make  an  assault; 
and  that  it  was  the  duty  of  the  prisoner  to  ventilate  and  cause  to  be 
ventilated  a  certain  coal  mine,  and  to  cause  it  to  be  kept  free  from 
noxious  gases,  and  that  the  prisoner  feloniously  omitted  to  cause  the 
mine  to  be  kept  ventilated,  and  that  the  noxious  gases  accumulated 
and  exploded,  whereby  the  said  J.  S.,  who  was  lawfully  in  the  said 
mine,  was  killed. 

It  appeared  that  a  mine,  called  Round  Green  Colliery,  situate  at 
Hales  Owen,  was  the  property  of  George  Parker,  Esq.,  and  that  the 
prisoner  was  a  sort  of  manager  of  it,  and  called  the  ground  bailiff; 
that  another  person  was  under  him,  called  the  butty,  he  being  a  sort 
of  foreman,  and  that  the  deceased,  who  was  called  the  doggy,  was  a 
kind  of  second  foreman  under  the  butt}'. 

It  further  appeared,  that,  at  about  half-past  six  o'clock  on  the  morn- 
ing of  the  17th  of  November,  1846,  a  number  of  men  were  working  in 
a  large  chamber  in  the  colliery,  when  there  was  an  explosion  of  fire- 
damp, by  which  nineteen  persons,  including  the  deceased  James 
Shakespeare,  were  killed  ;  and  it  was  imputed,  on  the  part  of  the 
prosecution,  that  this  explosion  would  have  been  prevented  if  the 
prisoner  had  caused  an  air-heading  to  have  been  put  up,  as  it  was  his 
duty  to  have  done.  But  it  was  sought  to  be  shown  by  the  cross-ex- 
amination of  the  witnesses  for  the  prosecution,  that  it  was  the  duty  of 
the  butty  (who  was  one  of  the  persons  killed  by  the  explosion)  to  have 
reported  to  the  prisoner  as  ground  bailiff  that  an  air-heading  was 
required  ;  and  that,  as  far  as  appeared,  he  had  not  done  so. 

Alle?i,  Serjt.,  for  the  prisoner,  submitted,  first,  that  the  prisoner  was 
not  guilty  of  any  negligence  at  all,  as  it  was  only  his  dut}'  to  cause  air- 
headings  to  be  put  up  on  the  requisition  of  the  butt}' ;  and,  secondly, 
that  a  person  who  was  guilty  only  of  breach  of  duty  by  omission, 
could  not  be  found  guilty  of  manslaughter ;  for  that,  in  order  to  con- 
stitute that  offence,  there  must  be  some  wrongful  or  improper  act  done 
by  the  prisoner,  except  in  those  cases  where  there  was  a  liability 
known  to  the  law,  such  as  providing  an  infant  with  food,  or  the  like. 
He  cited  the  case  of  Regina  v.  Allen. 

Maule,  J.  (in  summing  up).  The  prisoner  is  charged  with  man- 
slaughter, and  it  is  imputed  that,  in  consequence  of  his  omission  to 
do  his  duty,  a  person  named  Shakespeare  lost  his  life.  It  appears 
that  the  prisoner  acted  as  ground  bailiff  of  a  mine,  and  that,  as  such, 
his  duty  was  to  regulate  the  ventilation,  and  direct  where  air  headings 
should  be  placed ;  and  the  questions  for  yon  to  consider  are,  whether 


SECT,  v.]  KEGINA   V.    DAVIS.  473 

it  was  the  duty  of  the  prisoner  to  have  directed  an  air-heading  to  be 
made  in  this  mine  ;  and  whether,  by  his  omitting  to  do  so,  he  was 
guilt}'  of  a  want  of  reasonable  and  ordinary  precaution.  If  you  are 
satisfied  that  it  was  the  ordinar}'  and  plain  dut}'  of  the  prisoner  to 
have  caused  an  air-heading  to  be  made  in  this  mine,  and  that  a  man 
using  reasonable  diligence  would  have  had  it  done,  and  that,  b}'  the 
omission,  the  death  of  the  deceased  occurred,  you  ought  to  find  the 
prisoner  guilty  of  manslaughter.  It  has  been  contended  that  some 
other  persons  were,  on  this  occasion,  also  guilty  of  neglect.  Still, 
assuming  that  to  be  so,  their  neglect  will  not  excuse  the  prisoner ;  for, 
if  a  person's  death  be  occasioned  b}'  the  neglect  of  several,  they  are 
all  guilty  of  manslaughter ;  and  it  is  no  defence  for  one  who  was  neg- 
ligent to  say  that  another  was  negligent  also,  and  thus,  as  it  were,  tr}' 
to  divide  the  negligence  among  them. 

Verdict,  Not  guilty. 

HuddJeston  and  Hooper,  for  the  prosecution. 

Allen,  Serjt.,  and  Whitmore,  for  the  prisoner. 


REGINA  V.  DAVIS. 
Hertfordshire  Assizes.     1883. 

[Reported  15  Cox  C.  C.  174.] 

The  prisoners,  George  Davis  and  Charles  Wagstaffe,  were  indicted 
for  the  manslaughter  of  James  Butterworth,  at  Chipping  Barnet. 

Fulton  and  JBeard  were  counsel  for  the  prosecution. 

Sims  was  counsel  for  Davis,  and  Montagu  Williams  and  1^.  Turner 
for  Wagstaffe. 

From  the  evidence  it  appeared  that  about  10. .30  o'clock  on  the  eve- 
ning of  the  5th  day  of  September,  1882,  the  deceased  man  Butterworth 
with  some  friends  were  passing  the  shop  of  Davis,  a  greengrocer,  in 
High  Street,  Barnet.  He  went  into  the  shop  and  asked  Mrs.  Davis  to 
serve  him  with  an  apple.  Mrs.  Davis  for  some  reason  refused,  and  he 
thereupon  used  disgusting  language  to  her. 

A  few  minutes  afterwards  her  husband,  the  prisoner  Davis,  came  up  : 
abusive  words  then  followed,  and  a  fight  ensued  between  Davis  and 
Butterworth,  and  the  latter  was  knocked  over  some  baskets  outside  the 
shop.  Then  Marshall,  one  of  Butterworth's  friends,  interfered,  who, 
being  struck  by  the  defendant  Wagstaffe  (a  friend  of  Davis),  ran  away, 
followed  b}'  Wagstaffe.  Wagstaffe  then  returned  just  as  Butterworth 
was  getting  up  from  the  ground.  Wagstaffe  at  once  knocked  Butter- 
worth down  again,  and  Butterworth  then  called  out  that  "  he  has  broken 
my  jaw." 


474  REGINA   V.   DAVIS.  [CHAP.  III. 

On  examination  it  was  found  that  Butterworth's  jaw  was  Viioken  in 
two  places,  and  the  following  daj-  he  went  to  St.  Bartholomew's  Hospi- 
tal, and  the  surgeon  in  charge  decided  that  it  would  be  necessar}'  to 
wire  his  jaw,  and  the  assistant  chloroformist  was  sent  for,  and  the 
chloroform  properl}'  applied  ;  but  death,  unfortunately,  took  place  under 
the  operation. 

The />os^mo/•<em  examination  disclosed  a  serious  injury  to  the  trachea, 
as  well  as  tubercular  disease  of  both  lungs,  the  injury  to  the  trachea 
being  the  result  of  a  blow  received  during  the  fight.^ 

The  prisoner's  counsel  proposed  to  show  b}'  evidence  that  the  opinion 
formed  by  the  medical  men  was  grounded  upon  erroneous  premises,  and 
that  no  operation  was  necessar}'  at  all.  or  at  least  that  an  easier  and 
much  less  dangerous  operation  might  and  ought  to  have  been  adopted, 
and  contended  that  he  might  therefore  cross-examine  the  medical  wit- 
nesses for  the  prosecution  as  to  the  grounds  of  their  opinion  ;  and  he 
submitted  that  a  person  was  not  criminal!}-  responsible  where  the  death 
is  caused  by  consequences  which  are  not  physicalh'  the  consequences 
of  the  wound,  but  can  onl}-  be  connected  with  the  first  wound  b}'  moral 
reasoning ;  as  where  that  which  occasioned  death  was  the  operation 
which  supervened  upon  the  wound,  because  the  medical  men  thought  it 
necessary. 

Williams.  I  propose  to  call  medical  evidence  that  the  death  was 
caused  b}'  the  administration  of  the  chloroform. 

His  Lordship  [Mathew,  J.].  It  is  not  disputed  that  if  the  chloroform 
had  not  been  administered  the  man  would  not  have  died. 

His  Lordship  then  consulted  Mr.  Justice  Field,  and  said  :  ''I  have 
no  doubt  at  all  upon  the  matter,  nor  has  m}'  brother  Field,  whom  I 
have  consulted  ;  and  we  think,  whatever  ma}'  have  been  the  case  in 
1846,  the  law  is  now  too  clear  to  reserve  a  case  for  the  consideration 
of  the  judges,  and  that  if  the  jury  are  satisfied  that  the  injury  to  the 
jaw  was  inflicted  by  Wagstaffe,  and  that  Davis  aided  and  abetted  him, 
then  they  must  find  them  both  guilty  ;  and,  on  the  other  hand,  if  they 
think  there  is  no  suflScient  evidence  of  concert,  still  they  must  find  them 
both  guilty  if  they  think  Wagstaffe  broke  the  jaw,  and  Davis  inflicted 
the  injury  to  the  trachea.  We  both  think  that  the  chloroform  having 
been  properly  administered  by  a  regular  medical  practitioner,  the  fact 
that  death  primarily  resulted  from  its  use  cannot  aflfect  the  criminal 
responsibility  of  the  accused  persons.  Of  course,  if  the  jury  think  there 
was  a  melie,  and  that  there  is  no  reliable  evidence  of  concert,  and  they 
cannot  say  which  of  the  two  prisoners  inflicted  either  the  injury  to  the 
jaw  or  the  injury  to  the  trachea,  then  they  may  if  they  please  acquit 
them  both." 

The  learned  counsel  for  the  prisoners  then  addressed  the  jury. 

His  Lordship  (in  summing  up  the  case  to  the  jury).  It  might  appear 
that  the  death  was  not  due  to  any  act  of  either  prisoner,  but  to  some- 

1  The  statement  of  facts  aud  arguments  of  counsel  have  been  condensed. 


•SECT,  v.]  KEGINA    V.    DAVIS.  475 

thing  of  which  at  first  sight  they  were  not  guilty ;  and  that  their  moral 
guilt  reall}'  went  no  farther  than  the  guilt  of  a  man  who  committed  an 
assault.  The  prosecution  did  not  say  that  there  was  anything  more 
than  a  street  fight ;  the  injuries  were  serious,  but  perhaps  no  more  so 
than  where  it  hap[)ened  that  no  death  ensued,  and  the  man  who  had 
broken  the  peace  was  liable.  However,  the  case  was  to  be  dealt  with 
according  to  the  strict  rule  of  law,  which  was  that,  if,  although  there 
might  be  no  intent  to  do  more  than  assault,  still  an  injury  was  inflicted 
b}'  one  man  on  another  which  compelled  the  injured  man  to  take  medi- 
cal advice,  and  death  ensued  from  an  operation  advised  hy  the  medical 
man,  for  that  death  the  assailant  was  in  the  eye  of  the  law  responsible. 
And  if  the  jury  were  satisfied  that  both  or  either  of  the  men  were 
responsible  for  the  injury  to  the  deceased,  and  that  Butterworth  took 
the  proper  course  of  consulting  competent  medical  men  ;  that  they 
recommended  an  operation  for  the  purpose  of  which  chlorofoim  was 
4idministered,  and  he  died  from  that  chloroform,  death  must  be  traced 
back  to  the  act  of  the  man  by  whom  the  original  injury  was  done  to 
Butterworth.  They  would  deal  with  the  evidence  on  that  principle,  and 
whatever  the  consequences  might  be  they  would  have  to  pronounce  their 
verdict  on  that  footing.  [His  Lordship  then  went  through  and  com- 
mented upon  the  evidence,  and  proceeded  :]  The  first  question  was. 
Was  it  WagstaflTe  who  injured  tlie  man's  jaw?  If  Wagstatfe  struck  the 
blow  that  injured  the  man's  jaw,  or  whether  it  was  done  when,  as  some 
of  the  witnesses  said,  Wagstaffe  kicked  him,  then  it  was  their  duty 
to  say  Wagstafli^e  was  guilt}-.  There  was  evidence  that  the  blow  that 
injured  the  jaw  injured  the  trachea.  That  injury  to  the  jaw  caused 
resorting  to  the  hospital ;  competent  medical  men  decided  to  perform 
an  operation  ;  that  rendered  chloroform  necessary  ;  and  if  under  chloro- 
form the  man  died,  the  rule  of  law  was  that  the  death  could  be  traced 
back  to  the  man  by  whom  the  injury'  was  done.  For  it  would  never  do 
to  have  a  serious  injury  b}'  one  man  on  another,  and  have  the  issue 
raised  that  death  was  due  to  want  of  skill  on  the  part  of  the  medical 
men.  People  who  inflicted  injuries  must  deal  with  the  law.  If  the  jury 
thought  there  was  a  melee,  and  that  the  injury  was  not  clearly  brought 
home  to  Wagstaffe,  they  were  at  liberty  to  say  the  Crown  had  not 
brought  home  to  him  the  death  of  the  man.  If  they  were  satisfied 
Davis  had  nothing  to  do  with  the  injury,  and  he  thought  there  could 
be  no  doubt  about  that,  and  if  they  believed  it  was  brought  home  to 
Wagstaffe,  it  would  be  their  duty  to  acquit  Davis  and  say  Wagstaffe 
was  guilty. 
The  jury  acquitted  the  prisonera  Not  guilty. 


476  COREY   V.    IIAVENEK.  [CHAP.  III. 

COREY  V.  HAVENER. 
Supreme  Judicial  Court  of  Massachusetts,  1902. 

[Reported  182  Mass.  250.] 

Two  actions  of  tort  by  the  same  plaintiff  against  different  defendants 
for  injuries  to  the  plaintiff  and  to  his  wagon  caused  by  the  alleged  negli- 
gence of  both  defendants,  each  operating  a  separate  gasoline  motor 
tricycle  at  an  illegal  and  dangerous  rate  of  speed  and  frightening  the 
plaintiff's  horse.    Writs  dated  December  22,  1900. 

In  the  Superior  Court  the  two  cases  were  tried  together  before  Pierce, 
J.  It  appeared  that  the  plaintiff,  who  was  very  deaf  and  could  only 
hear  by  the  use  of  an  ear  trumpet,  was  driving  slowly  in  a  wagon 
along  Shrewsbury  Street,  a  public  street  and  main  thoroughfare  in 
Worcester;  that  the  defendants  came  up  from  behind  and  passed  the 
plaintiff  at  a  high  rate  of  speed  one  on  each  side;  that  each  defendant 
was  mounted  on  a  motor  tricycle  with  a  gasoline  engine  making  a  loud 
noise  and  emitting  steam,  some  of  the  plaintiff's'  witnesses  saying  that 
the  machines  emitted  steam  and  smoke,  making  a  cloud  about  the 
defendants  as  they  rode. 

The  plaintiff  testified  that  his  horse  took  fright  when  the  defend- 
ants first  passed  but  was  under  control  and  guidance  until  he  over- 
took the  defendants,  and  that  running  between  them  the  horse  shied 
and  he  then  lost  control.  His  wagon  wheel  struck  another  wagon 
going  in  the  same  direction,  and  the  injuries  to  himself  and  his  wagon 
occurred. 

The  plaintiff  and  each  of  his  witnesses  was  asked  on  cross-examination 
if  he  could  tell  which  defendant  or  which  vehicle  caused  the  horse 
to  take  fright,  and  each  witness  was  unable  to  tell. 

The  defendants  requested  the  judge  to  instruct  the  jury,  that  the 
evidence  showing  that  they  were  on  two  separate  vehicles  entirely 
independent  of  each  other,  and  there  being  two  different  suits  for  the 
same  injury,  the  burden  was  on  the  plaintiff  to  show  which  one  of  the 
defendants,  if  either,  was  to  blame;  and  that,  if  it  was  not  clearly  shown 
which  one  of  the  defendants  caused  the  accident,  the  plaintiff  could 
not   recover, 

The  defendants  also  requested  the  judge  to  instruct  the  jury  that 
there  being  two  defendants  and  two  separate  suits,  and  the  cause  of 
action  against  each  being  for  the  same  injury,  if  the  jury  found  for  the 
plaintiff  they  must  assess  the  full  damages  and  determine  against  which 
defendant,  and  that  they  could  not  assess  full  damages  against  both, 
as  that  would  be  giving  double  damages. 

The  judge  refused  to  give  either  of  these  instructions.  The  jury  found 
for  the  plaintiff  in  each  case  and  in  each  case  assessed  the  damages  in 
the  sum  of  $700.    The  defendants  alleged  exceptions. 

Lathrop,  J.     The  only  question  which  arises  in  these  cases  is  whether 


SECT,  v.]  GAY   V.    STATE.  477 

the  judge  erred  in  refusing  to  give  the  instructions  requested.  The  bill 
of  exceptions  does  not  set  forth  what  instructions  were  given,  and  we 
must  assume  that  they  were  appropriate  to  the  case  as  presented  by  the 
evidence,  and  were  correct. 

The  verdict  of  the  jury  has  estaVjlished  the  fact  that  both  of  the 
defendants  were  wrongdoers.  It  makes  no  difference  that  there  was 
no  concert  between  them,  or  that  it  is  impossiljle  to  determine  what 
portion  of  the  injury  was  caused  by  each.  If  each  contributed  to  the 
injury,  that  is  enough  to  bind  both.  Whether  each  contributed  was 
a  question  for  the  jury.  Boston  &  Albany  Railroad  v.  Shanly,  107 
Mass.  568,  578,  and  cases  cited. 

It  makes  no  difference  that  the  defendants  were  sued  severally 
and  not  jointly.  If  two  or  more  wrongdoers  contribute  to  the  injury, 
they  may  be  sued  either  jointly  or  severally.  McAvoy  v.  Wright,  137 
Mass.  207.  The  first  request  for  instructions  was  therefore  rightly 
refused. 

Nor  was  there  any  error  in  refusing  to  give  the  second  request.  If 
both  defendants  contributed  to  the  accident,  the  jury  could  not  single 
out  one  as  the  person  to  blame.  There  being  two  actions,  the  plaintiff 
was  entitled  to  judgment  against  each  for  the  full  amount.  There  is 
no  injustice  in  this,  for  a  satisfaction  of  one  judgment  is  all  that  the 
plaintiff  is  entitled  to.  Elliott  v.  Hayden,  104  Mass.  180;  Savage  v. 
Stevens,  128  Mass.  254;  Luce  v.  Dexter,  135  Mass.  23,  26;  McAvoy 
V.  Wright,  137  Mass.  207;  Galvin  ?;.  Parker,  154  Mass.  346;  Worcester 
County  V.  Ashworth,  160  Mass.  186,  189. 

Exceptions  overruled.^ 


GAY   V.    STATE. 

Supreme  Court  ob  Tennessee,  1891. 

[Reported  90  Ten7i.  645.] 

Lea,  J.  The  plaintiff  in  error  was  indicted  and  convicted  of  a  nui- 
sance in  keeping  and  maintaining  a  hog-pen  in  a  filtliy  condition. 
There  were  several  witnesses  who  proved  it  was  a  nuisance.  There 
were  several  who  proved  tliat  the  pen  was  kept  remarkabh'  clean,  and 
was  no  nuisance ;  and  several  proved  that,  if  there  was  a  nuisance,  it 
was  caused  by  a  number  of  hog-pens  in  the  neighborhood. 

His  Honor,  among  other  things,  charged  the  jury:  "If  the  jury  find 
that  the  smell  created  by  the  defendant's  pen  was  not  sufficient  within 
itself  to  constitute  a  nuisance,  yet  it  contributed  witli  other  pens  in  the 
neighborhood  to  forming  a  nuisance,  the  defendant  would  be  guilty." 

This  was  error.  The  defendant  can  only  be  held  liable  for  the  con- 
sequences which  his  act  produced.  The  nuisance  complained  of  must 
be  the  natural  and  direct  cause  of  his  own  act. 

»  See  also  Brown  v.  Thayer,  212  Mass.  237,  99  N.  E.  237;  Mathews  v.  Tramways 
Co.,  60  L.  T.  Rep.  47,  Smith  Cas.  Torts  82.—  Ed. 


478  CHACEY  V.   CITY  OF  FARGO.         [CHAP.  III. 


CHACEY  V.   CITY  OF  FARGO. 
Supreme  Court  of  North  Dakota,  1895. 

[Reported  5  N.  D.  173.] 

Corliss,  J.  The  plaintiff  has  recovered  a  judgment  against  the  de- 
fendant, the  city  of  Fargo,  for  damages  sustained  by  her  by  reason  of 
a  defective  sidewalk  within  the  corporate  limits  of  that  city.  While 
walking  along  this  sidewalk,  she  was  overtaken  and  passed  by  a  person 
riding  a  bicycle,  which  threw  out  a  loose  plank  immediately  in  front 
of  plaintiff,  who  stepped  into  the  hole  in  the  walk,  thus  unexpectedly 
made,  and  sustained  severe  injuries.  One  of  the  contentions  of  defend- 
ant against  its  liability  is  that  the  defective  walk  was  not  the  proxi- 
mate cause  of  the  injury;  that  plaintiff  must,  in  law,  trace  her  fall  to 
the  bicycle  alone.  Had  some  one,  a  short  time  before  the  accident, 
removed  the  loose  plank,  and  had  plaintiff  thereafter  been  injured,  the 
city  might  not  have  been  liable,  in  the  absence  of  notice  of  the  hole  in 
the  sidewalk,  for  in  that  case  the  hole,  and  not  the  loose  plank,  perhaps, 
would  have  been  the  proximate  cause  of  the  injury.  But  the  case 
before  us  presents  no  such  question.  The  loose  plank  was  one  of  the 
proximate  causes  of  the  injury,  for  it  was  the  existence  of  such  a  loose 
plank  that  made  it  possible  for  a  passing  bicycle  to  throw  it  out  of 
its  place,  and  suddenly  open  before  the  plaintiff  a  dangerous  pitfall. 
She  was  precipitated  to  the  ground  and  hurt,  not  because  there  was 
a  hole  in  the  sidewalk,  but  because  there  was  a  loose  plank  there 
which  might  be  thrown  out  immediately  in  front  of  her  by  another, 
thus  causing  her  injury.  Undoubtedly  it  is  true  that,  but  for  the  pass- 
ing of  the  bicycle  at  that  time,  no  accident  would  have  occurred.  But 
it  is  also  true  that,  had  it  not  been  for  the  defective  walk,  the  passing 
of  the  bicycle  would  have  resulted  in  no  harm  to  the  pedestrian. 
Under  these  circumstances  we  regard  as  controlling  the  rule  laid  down 
by  the  court  in  Ring  v.  City  of  Cohoes,  77  N.  Y.  83:  "When  two  causes 
combine  to  produce  an  injury  to  a  traveller  upon  a  highway,  both  of 
which  are,  in  their  nature,  proximate,  the  one  being  a  culpable  defect 
in  the  highway,  and  the  other  some  occurrence  for  which  neither  party 
is  responsible,  the  municipality  is  responsible,  pro\^ded  the  injury  would 
not  have  been  sustained  but  for  that  fact.  Where  several  proximate 
causes  contribute  to  the  accident,  and  each  is  an  efficient  cause,  with- 
out the  operation  of  which  the  accident  would  not  have  happened, 
it  may  be  attributed  to  all  or  any  of  the  causes,  but  it  cannot  be  attrib- 
uted to  a  cause  unless,  without  its  operation,  the  accident  would  not 
have  happened."  This  rule  has  been  generally  recognized,  and  has 
been  applied  in  many  cases.  Its  soundness  cannot  be  questioned. 
See  Jones,  Neg.  163,  and  note  381 ;  2  Shear.  &  R.  Neg.  §  426;  Elliott, 
Roads  &  S.  451,  and  notes;  Morrill,  City  Neg.  106-110.^ 

^  The  remainder  of  the  opinion  contains  a  discussion  of  other  questions.  —  Ed. 


SECT,  v.]  SOUTHERN   RAILWAY   CO.    V.   WEBB.  479 

PASTENE  V.  ADAMS. 
Supreme  Court  of  California,  1874. 

[Reported  49  Cal.  87.] 

The  defendants  were  lumber  dealers  in  the  city  of  San  Francisco, 
and  had  a  lumber  yard  on  the  easterly  side  of  Stewart  Street,  between 
Howard  and  Folsom  streets.  Their  office  fronted  on  the  east  side  of 
Stewart  Street,  which  runs  north  and  south,  and  there  were  two  gang- 
ways or  roads  leading  from  the  street  into  the  lumber  yard,  one  on  the 
north  side  of  the  office,  and  one  on  the  south,  each  about  twelve  feet 
wide.  The  distance  between  these  gangways  was  about  thirty-five 
feet.  In  front  of  the  office,  and  in  Stewart  Street,  and  between  the  gang- 
ways, the  defendants  had  piled  three  tiers  of  timbers,  about  twelve 
inches  square.  The  ends  of  these  timbers  extended  to  the  gangways, 
but  they  were  so  laid,  one  upon  another,  that  the  ends  of  some  pro- 
jected more  than  others.  The  plaintiff  went  to  the  defendants'  office 
to  purchase  lumber,  and  started  from  the  office  wath  a  clerk,  to  walk 
down  Stewart  street,  alongside  of  the  timbers  to  the  gangway.  While 
walking  close  to  the  timbers,  one  Randall  drove  a  team  from  the 
yard  through  the  gangway  to  the  street,  and,  in  doing  so,  the  wheel 
caught  the  end  of  one  of  the  timbers  and  threw  it  down.  The  plaintiff's 
leg  sustained  such  an  injury  as  to  render  amputation  necessary.  This 
action  was  brought  to  recover  damages  for  the  injury  he  thus  sustained. 
There  was  an  issue  made  in  the  pleadings  as  to  whether  the  timbers 
were  carelessly  piled.  The  timbers  had  lain  there  for  several  months. 
The  jury  gave  a  verdict  for  the  plaintiff  for  two  thousand  dollars  dam- 
ages, and  the  defendants  appealed. 

McKiNSTRY,  J.  If  the  timbers  were  negligently  piled  by  the  defend- 
ants, the  negligence  continued  until  they  were  thrown  down,  and 
(concurring  with  the  action  of  Randall)  was  a  direct  and  proximate 
cause  of  the  injury  sustained  by  the  plaintiff. 

Judgment  affirmed} 


SOUTHERN  RAILWAY  CO.   v.  WEBB. 
Supreme  Court  of  Georgia,  1902. 

[Reported  116  Mick.  425.] 

Cobb,  J.  This  was  an  action  by  the  father  of  John  W.  Webb 
against  the  Southern  Railway  Company,  for  damages  alleged  to  have 
been  sustained  by  the  plaintiff  on  account  of  the  homicide  of  his  son. 

'  See  also  Snydor  v.  Arnold,  122  Ky.  "u ,  02  S.  W.  289.  —  Ed. 


480  SOUTHERN    RAILWAY    CO.  V.  WEBB.  [CHAP.  III. 

The  trial  resulted  in  a  verdict  in  favor  of  the  plaintiff,  and  the  defend- 
ant complains  that  the  court  erred  in  refusing  to  grant  it  a  new  trial. 

1.  The  petition  alleged  that  John  W.  Webb  was  a  passenger  on  one 
of  the  trains  of  the  defendant;  that  while  in  one  of  the  cars  of  the 
train,  in  the  exercise  of  all  ordinary  care  and  diligence,  and  just  as  he 
was  about  to  take  a  seat  near  the  rear  door  of  the  car,  the  train  was 
negligently,  suddenly,  forcibly  and  with  great  violence  jerked,  jarred, 
and  jolted,  and  as  a  result  Webb  was  suddenly  and  without  fault  on 
his  part  thrown  through  the  rear  door  of  the  car,  and  fell  across  the 
platform  at  the  end  of  the  car  on  to  the  track  on  a  bridge  over  which  the 
train  was  passing  at  the  time  the  jolt  took  place;  that  he  was  stunned 
by  the  fall  and  rendered  insensible;  and  that,  while  upon  the  track 
in  a  stunned,  insensible,  and  injured  condition  and  unable  to  walk  or 
protect  himself,  he  was  negligently  run  over  and  killed  by  another 
engine  passing  along  the  track  over  the  bridge.  There  was  eWdence 
authorizing  the  jury  to  find  that  W^ebb  was  a  passenger  upon  a  train  of 
the  defendant,  and  that  while  this  train  was  going  over  a  bridge  a  sudden 
and  violent  jolt  occurred,  sufficient  to  throw  one  from  his  feet  who  was 
standing  in  the  train,  and  which  had  the  effect  of  jostling  the  passengers 
and  throwing  down  bundles  from  the  racks  of  the  car;  that  Webb  was 
seen  upon  the  train  just  before  this  jolt  occurred,  and  he  was  then  near 
the  rear  door  of  the  car;  that  he  was  not  seen  afterwards  by  any  one 
who  was  in  the  car;  that  shortly  after  the  train  upon  which  he  was  last 
seen  had  passed  over  the  bridge,  an  engine  belonging  to  the  Georgia 
Railroad  Company  ran  over  and  killed  Webb,  who  was  lying  across  the 
track  on  the  bridge  just  at  the  point  where  the  train  was  when  the 
jolt  occurred;  that  while  the  defendant  had  no  control  over  this  engine, 
the  engines  of  the  Georgia  Railroad  Company  had  a  right  to  use  this 
track,  and  it  was  known  to  the  defendant  that  the  engines  of  that 
company  might  pass  along  the  track  at  any  time  when  it  was  not  other- 
wise in  use.  W'hile  the  e\adence  was  conflicting  as  to  some  of  the  points 
above  referred  to,  there  was  ample  evidence  authorizing  the  jury  to 
find  all  of  the  facts  above  stated.  It  is  contended  b\'  the  counsel  for 
the  plaintiff  that  from  this  evidence  the  jury  could  have  inferred  that 
W^ebb  was  thrown  from  the  rear  door  of  the  car  upon  the  track  and  was 
there  in  a  stunned  condition  at  the  time  the  engine  ran  over  him. 
Counsel  for  the  railway  company  contends  that  the  jury  were  not 
authorized  to  draw  any  such  inferences,  and  that  the  plaintiff  has 
failed  to  establish  the  case  made  in  the  petition;  but  that  even  if  this 
position  is  not  correct  and  the  jury  were  authorized  to  infer,  from  the 
facts  above  referred  to,  that  Webb  was  thrown  from  the  inside  of  the 
car  through  the  rear  door  of  the  same  upon  the  track  and  stunned  by 
the  fall,  still  the  plaintiff  could  not  recover,  for  the  reason  that  the  neg- 
ligence of  the  defendant  which  resulted  in  Welch's  being  hurled  upon 
the  track  was  not  the  proximate  cause  of  his  death,  but  that  the  im- 
mediate cause  of  his  death  was  the  intervention  of  another  independent 


J 

J 


SECT,  v.]  SOUTHERN   RAILWAY   CO.  V.  WEBB.  481 

agency,  that  is,  the  running  of  the  engine  of  the  Georgia  Railroad  Com- 
pany upon  the  tracks  at  that  point.  As  we  have  reached  the  conclusion, 
for  reasons  which  will  be  hereafter  stated,  that  the  jury  were  authorized 
to  infer,  from  the  facts  above  detailed,  that  Webb  was  negligently 
thrown  from  the  inside  of  the  car  through  the  rear  door  upon  the 
track,  it  becomes  necessary  to  determine  whether  this  negligence  on  the 
part  of  the  defendant  was  so  far  the  proximate  cause  of  the  death  of 
Webb  that  the  defendant  would  be  liable,  notwithstanding  the  death 
was  not  actually  brought  about  l)y  the  fall  from  the  train,  but  by  the 
running  of  the  engine  which  ran  over  and  killed  him  while  he  was  lying 
in  an  insensible  condition  upon  the  track.  See,  in  this  connection, 
Hopkins'  L.  Pers.  Inj.  §§  14,  15,  16.  "No  branch  of  the  subject  of 
personal  injuries  presents  greater  difficulty  than  the  determination 
of  liability  for  a  specific  loss,  with  reference  to  its  naturalness  and  prox- 
imity as  a  consequence  of  the  wrongful  act  complained  of."  Wat- 
son's Personal  Injuries,  §  25.  As  was  said  by  Elbert,  J.,  in  Pullman 
Palace  Car  Co.  v.  Barker,  4  Colo.  344,  "  What  is  the  proximate  cause  of 
an  injury  in  a  legal  sense  is  often  an  embarrassing  question,  involved 
in  metaphysical  distinctions  and  subtleties  difficult  of  satisfactory 
application  in  the  varied  and  practical  affairs  of  life."  Chief  Justice 
Shaw,  in  Marble  v.  Worcester,  4  Gray,  397,  said:  "The  whole  doctrine 
of  causation,  considered  in  itself  metaphysically,  is  of  profound 
difficulty,  even  if  it  may  not  be  said  of  mystery."  In  Scott  v.  Hunter, 
4G  Penn.  St.  195,  Strong,  J.,  said:  "Indeed,  it  is  impossible  by  any 
general  rule  to  draw  a  line  between  those  injurious  causes  of  damage 
which  the  law  regards  as  sufficiently  proximate,  and  those  which  are 
too  remote  to  be  the  foundation  of  an  action."  In  Smith  v.  Telegraph 
Co.,  83  Ky.  114,  Judge  Holt  remarked:  "The  line  between  proximate 
and  remote  damages  is  exceedingly  shadowy;  so  much  so,  that  the  one 
fades  away  into  the  other,  rendering  it  often  very  difficult  to  determine 
whether  there  is  such  a  connection  between  the  wrong  alleged  and  the 
resulting  injury  as  to  place  them,  in  contemplation  of  law,  in  the  re- 
lation of  cause  and  effect."  It  has  been  said  that  notwithstanding  the 
maze  of  doubt  and  difficulty  with  which  this  subject  seems  to  be  in- 
volved, still  it  is  possible  to  take  a  more  practical  and  simpler  \aew 
than  the  observations  of  learned  jurists  would  indicate;  that  the  prac- 
tical administration  of  justice  prefers  to  disregard  the  intricacies  of 
metaphysical  distinctions  and  subtleties  of  causation,  and  to  hold  that 
the  injury  as  to  natural  and  proximate  cause  and  consequence  is  to  be 
answered  in  accordance  with  common  sense  and  common  understanding. 
Watson's  Pers.  Inj.  §  28.  From  the  author  just  cited  we  quote  the 
following: 

"  A  natural  consequence  is  one  which  has  followed  from  the  original 
act  complained  of,  in  the  usual,  ordinary,  and  experienced  course  of 
events.  A  result,  therefore,  which  might  reasonably  have  been  an- 
ticipated or  expected.     Natural  consequences,  however,  do  not  nee- 


482  SOUTHERN   RAILWAY    CO.    V.    WEBB.  [CHAP.  III. 

essarily  include  all  such  as  upon  a  calculation  of  chances  would  be  found 
possible  of  occurrence,  or  such  as  extreme  prudence  might  anticipate, 
but  only  those  which  ensue  from  the  original  act  without  any  such 
extraordinary  coincidence  or  conjunction  of  circumstances  as  that  the 
usual  course  of  nature  should  seem  to  have  been  departed  from."    §  33. 

"  From  the  very  outset,  the  practical  distinction  between  causes  and 
conse<iuences  should  be  borne  in  mind  in  this  particular :  a  consequence 
of  an  original  cause  may,  in  turn,  become  the  cause  of  succeeding  con- 
sequences. But  such  a  cause  should  not,  manifestly,  be  regarded  as 
an  intervening  cause  which  will  relieve  from  liability  the  author  of  the 
original  cause,  but  rather  as  only  a  consequence  along  with  the  other 
consequences.  A  tortious  act  may  have  several  consequences,  con- 
current or  successive,  for  all  of  which  the  first  tort-feasor  is  responsible. 
It  is  not  intervening  consequences,  but  intervening  causes  which  re- 
lieve. The  test  is  to  be  found,  it  has  been  said,  not  in  the  number  of 
intervening  events  or  agents,  but  in  their  character  and  in  the  natural 
and  probable  connection  between  the  wTong  done  and  the  injurious 
consequence.  So  long  as  it  affirmatively  appears  that  the  mischief  is 
attributable  to  the  original  WTong  as  a  result  which  might  reasonably 
have  been  foreseen  as  probable,  legal  liability  continues."     §  58. 

"Some  authorities  have  formulated  rules  on  this  subject  designed 
for  general  application,  as  that  the  defendant  is  not  responsible  where 
there  has  intervened  the  wilful  wrong  of  a  third  person,  or  is  liable  where 
such  act  is  of  a  negligent  character  merely.  But  the  better  doctrine 
is  believed  to  be  that  whether  or  not  the  intervening  act  of  a  third 
person  will  render  the  earlier  act  too  remote  depends,  simply,  upon 
whether  the  concurrence  of  such  intervening  act  might  reasonably 
have  been  anticipated  by  the  defendant."    §  71. 

In  Pittsburgh  Railway  Co.  v.  Taylor,  104  Perm.  St.  315,  Mr.  Justice 
Paxson  said:  "In  determining  what  is  proximate  cause  the  true  rule 
is,  that  the  injury  must  be  the  natural  and  probable  consequence  of  the 
negligence,  such  a  consequence  as  under  the  surrounding  circumstances 
of  the  case  might  and  ought  to  have  been  foreseen  by  the  wrongdoer 
as  likely  to  flow  from  his  act."  In  Lane  v.  Atlantic  Works,  111  Mass. 
139,  Colt,  J.,  said:  "The  injury  must  be  the  direct  result  of  the  mis- 
conduct charged ;  but  it  'mW  not  be  considered  too  remote  if,  according 
to  the  usual  experience  of  mankind,  the  result  ought  to  have  been 
apprehended.  The  act  of  a  third  person,  intervening  and  contributing 
a  condition  necessary  to  the  injurious  effect  of  the  original  negligence, 
will  not  excuse  the  first  wTongdoer,  if  such  act  ought  to  have  been  fore- 
seen. The  original  negligence  still  remains  a  culpable  and  direct  cause 
of  the  injury.  The  test  is  to  be  found  in  the  probable  injurious  conse- 
quences which  were  to  be  anticipated,  not  in  the  number  of  subsequent 
events  and  agencies  which  might  arise."  In  Scale  v.  Ry.  Co.,  65  Tex. 
278,  Chief  Justice  Willie  said:  "What  character  of  intervening  act  will 
break  the  causal  connection  between  the  original  wrongful  act  and  the 


SECT,  v.]  SOUTHERN    RAILWAY   CO.    V.   WEBB.  483 

subsequent  injury  is  also  left  in  doubt  by  the  decisions.  If  the  inter- 
vening cause  and  its  probable  or  reasonable  consequences  be  such  as 
could  reasonably  have  been  anticipated  by  the  original  wrongdoer, 
the  current  of  authority  seems  to  be  that  the  connection  is  not  broken." 
See  also  Col.  Mtg.  Co.  v.  Rees  (Col.),  42  Pac.  42,  45;  21  Am.  &  Eng. 
Enc.  L.  (2d  ed.)  486  et  seq. 

Treating  it  as  established  in  the  present  case  that  Webb  was  upon  the 
track  of  the  defendant  in  an  insensible  condition  as  a  result  of  the  negli- 
gence of  the  defendant,  is  it  reasonable  or  unreasonable  to  hold  that  the 
defendant  should  have  apprehended  that  a  person  in  this  condition, 
in  such  a  place,  might  be  injured  or  killed  by  the  running  of  an  engine 
upon  the  track?  Was  the  defendant  bound  to  anticipate  that  injury  or 
death  might  result  to  a  person  in  such  a  condition  in  such  a  place? 
The  track  was  under  the  control  of  the  defendant;  and  if  Webb  had 
been  killed  by  an  engine  of  the  defendant  which  came  along  the  track 
after  the  train  from  which  Webb  was  thrown  had  passed,  the  defend- 
ant would  have  been  liable,  although  the  employees  in  charge  of  the 
engine  had  been  wholly  free  from  negligence.  South  Carolina  Railroad 
Company  v.  Nix,  68  Ga.  572.  In  that  case  Mr.  Chief  Justice  Jackson 
said :  "  Suppose  there  had  been  a  prosecution  for  murder,  who  would  be 
found  guilty  thereof,  the  conductor  of  the  train  who  did  the  deed  of 
throwing  him  off  and  under,  or  the  conductor  of  the  other  train  who 
ran  unconsciously  over  him?  Clearly  he  who  did  the  intentionally 
wrongful  act,  and  whose  act  caused  his  death."  The  principle  upon 
which  the  ruling  in  the  Nix  case  is  founded  is  that  a  railway  company  is 
bound  to  know  that  its  tracks  may  be  used  at  any  time  by  the  engines 
and  trains  of  the  company,  and  is  bound  to  anticipate  and  apprehend 
any  consequence  that  may  result  to  one  who,  on  account  of  its  negli- 
gence, is  left  in  a  condition  in  which  and  in  a  place  where  he  is  liable 
to  be  injured  by  the  running  of  such  trains.  If  a  railway  company  is 
bound  to  anticipate  and  apprehend  that  one  left  in  a  helpless  condition  in 
a  perilous  place  upon  its  tracks  through  its  negligence  may  be  injured 
by  one  of  its  own  engines  or  trains  running  thereon,  is  it  not  equally 
bound  to  so  anticipate  and  apprehend  any  injury  which  might  result 
to  such  a  person  from  an  engine  of  another  company  which  the  first 
company  knew  had  a  right  to  and  did  actually  use  the  tracks  from  time 
to  time?  It  would  indeed  bring  about  a  curious  result  if  the  defendant 
would  be  hable  in  such  a  case  only  when  the  second  engine  or  train  was 
owned  by  it.  It  must  be  kept  in  mind  that  in  such  cases  no  negligence 
is  claimed  against  the  persons  in  charge  of  the  second  train  or  engine. 
They  are  blameless.  If  there  is  any  liability,  it  results  from  the  negli- 
gence of  those  in  charge  of  the  train  which  left  the  person  killed  in  a 
perilous  situation  upon  the  track.  It  would  seem  that  ownership 
of  the  second  engine  or  train  would  be  entirely  immaterial,  and  the 
only  question  to  be  considered  would  be  whether  the  first  company 
knew,  or  ought  to  have  known,  that  the  second  engine  or  train,  no 


484  SOUTHERN    RAILWAY   CO.    V.    WEBB.  [CHAP.  III. 

matter  by  whom  owned,  had  a  rigJit  to  or  did  actually  from  time  to 
time  use  the  track  at  the  place  at  which  the  person  was  killed. 

When  a  railway  company  negligently  leaves  a  person  upon  its 
track  in  a  helpless  condition,  it  will  certainly  be  held  liable  for  any  in- 
jurious consequences  which  may  result  to  such  a  person  growing  out 
of  the  running  of  trains  along  the  track,  without  regarding  the  owner- 
ship of  such  trains,  if  the  company  knew  or  ought  to  have  apprehended 
that  the  trains  would  pass  along  the  track  at  that  point.  The  present 
case  is  very  similar  to  the  case  of  Byrne  v.  Wilson,  15  Ir.  Com.  Law 
Rep.  332.  That  was  a  case  brought  in  1862,  under  Lord  Campbell's 
act,  by  William  Byrne,  as  administrator  of  Mary  Byrne,  against  a  per- 
son who  was  alleged  to  be  the  proprietor  of  certain  omnibuses  and  as 
such  engaged  in  the  business  of  a  common  carrier  of  passengers.  Mary 
Byrne  was  a  passenger  in  one  of  the  omnibuses,  and  through  the  negli- 
gence of  the  servants  of  the  defendant  the  omnibus  was  precipitated 
into  the  lock  of  a  canal,  and  Mary  B^Tue  was  there  in  an  insensible 
condition,  when  the  keeper  of  the  lock  turned  the  water  therein,  and 
she  was  drowned.  It  was  held  that  although  the  death  of  Mary  Byrne 
was  not  caused  immediately  by  the  act  of  the  defendant,  it  was  such  a 
consequential  result  of  that  act  as  entitled  her  representative  to  main- 
tain an  action.  Lefroy,  Chief  Justice,  said  (p.  340) :  "  It  was  not  the 
negligence  of  the  defendant  that  was  the  immediate  occasion  of  her 
death  but  it  was  the  negligence  of  the  defendant  that  put  her  into  a  posi- 
tion by  which  she  lost  her  life,  as  a  consequential  injury  resulting  from 
that  negligence;  and  although  that  death  was  not  caused  immediately 
by  the  act  of  the  defendant,  nor  was  the  immediate  and  instantaneous 
result  of  his  negligence,  yet  it  was  the  consequential  result  of  the  defend- 
ant's act,  and  enables  her  representative  to  maintain  this  action."  The 
defendant  knew  that  the  Georgia  Railroad  Company  had  a  right  to  use 
these  tracks.  It  also  knew  that  it  might  use  them  at  any  time.  When, 
therefore,  Webb  was  negligently  thrown  upon  the  tracks  and  left  there 
in  a  helpless  condition,  the  defendant  was  bound  to  apprehend  and 
anticipate  that- injurious  consequences  woukl  likely  result  to  him  from 
the  use  of  the  track  by  the  servants  and  agents  of  the  Georgia  Railroad 
Company  in  charge  of  its  engines  and  trains.  This  being  so,  the  negli- 
gence of  the  defendant  which  resulted  in  leaving  Webb  helpless  upon 
its  tracks  was  in  law  the  proximate  cause  of  his  death,  notwithstanding 
his  death  was  actually  brought  about  by  another  agency. 

We  do  not  think  this  ruling  is  in  conflict  with  any  of  the  cases  cited 
in  the  brief  of  counsel  for  the  plaintiff  in  error.  In  Perry  v.  Railroad 
Co.,  66  Ga.  746,  the  plaintiff  had  deposited  his  luggage  in  a  car  of  the 
defendant,  intending  to  go  upon  the  train  as  a  passenger,  and  left  the 
car  and  engaged  in  conversation  with  another  person  in  the  depot. 
While  so  engaged  his  attention  was  called  to  the  fact  that  the  train 
had  moved  off  and  he  ran  until  he  reached  the  end  of  the  car-shed. 
While  passing  through  the  gateway  of  the  car-shed  he  came  in  con- 


SECT,    v.]  SOUTHERN    RAILWAY   CO.    V.    WEBB.  485 

tact  with  the  engine  of  another  company,  which  was  coming  into  the 
shed,  and  as  a  consequence  received  serious  injuries.  It  was  held  that 
the  negligence  of  the  railroad  company  in  starting  its  train  without 
giving  a  signal  was  not  the  proximate  cause  of  the  injury  which  the 
plaintiff  subsequently  received  by  running  against  the  engine  of 
another  train  in  his  effort  to  catch  the  defendant's  train.  The  defend- 
ant could  not  have  foreseen,  nor  was  it  bound  to  anticipate  or  appre- 
hend, that,  as  a  result  of  its  negligence  in  starting  its  train  without  a 
signal,  a  passenger  would,  in  attempting  to  catch  the  train,  run  against 
the  engine  of  another  train  and  receive  serious  injuries.  In  the  case  of 
Mayor  v.  Dykes,  103  Ga.  847,  a  street-car  company  had  negligently 
constructed  its  track  so  that  the  rails  were  above  the  surface  of  the  street. 
The  plaintiff,  while  driving  a  horse  attached  to  a  two-wheel  road-cart, 
attempted  to  drive  across  the  track  at  an  angle  of  about  forty-five  de- 
grees; the  wheels  of  his  cart  came  in  contact  with  the  iron  rails  of  the 
track,  slipped  along  the  track  and  made  a  scraping  noise,  which  caused 
the  horse  to  take  friglit  and  run  away.  The  cart  collided  with  a  wagon, 
and  plaintiff  was  thrown  to  the  ground  and  seriously  injured.  Although 
the  street-car  company  may  have  been  negligent  in  the  way  it  con- 
structed its  track,  it  certainly  could  not  have  foreseen  that  as  a  result 
of  this  negligence  a  scraping  noise  would  be  made,  and  that  this  noise 
would  frighten  a  horse  and  the  horse  would  run  away,  and  the  vehicle  to 
which  he  was  hitched  would  collide  with  a  wagon  and  the  plaintiff 
would  as  a  result  be  injured.  Of  course,  if  the  car  had  been  overturned 
as  a  result  of  the  tracks  being  built  too  high  above  the  surface  of  the 
street,  and  injury  had  resulted  from  an  accident  of  this  character,  the 
case  would  have  been  different. 

In  Central  Ry.  Co.  v.  Price,  106  Ga.  176,  the  plaintiff  was  a  passenger 
who  had  been  carried  wrongfully  beyond  her  station  and  when  this 
fact  was  discovered  she  was  requested  to  alight  at  another  station,  which 
she  did,  and  was  carried  to  a  hotel  by  the  conductor.  While  at  the  hotel 
a  lamp  in  her  room  exploded  and  as  a  consequence  she  sustained 
damage.  It  was  held  that  the  railway  company  was  not  liable  for  the 
injury  thus  sustained.  The  defendant  could  not  have  foreseen,  ap- 
prehended, or  anticipated  that  the  plaintiff  would  suffer  injuries  of  the 
character  received  by  her  at  the  hotel;  and  hence  its  negligent  act  in 
carrying  her  beyond  her  station  could  not  be  said  to  be  the  proximate 
cause  of  the  injuries  thus  received.  In  Central  Ry.  Co.  v.  Edwards, 
111  Ga.  528,  the  plaintiff  was  a  brakeman  on  a  freight-train,  and  was 
ordered  by  the  conductor  to  jump  off  the  train  for  the  purpose  of  chang- 
ing the  switch.  In  obedience  to  this  order  the  plaintiff  jumped  from  the 
car  on  which  he  was  standing,  and  being  unable  to  see  the  ground  be- 
neath him,  his  right  foot  was  caught  in  a  frog  of  the  switch,  the  frog  not 
having  been  blocked  so  as  to  prevent  such  an  accident,  and  the  wheels 
of  the  car  ran  over  and  crushed  his  foot.  The  distinction  between  that 
case  and  the  present  will  be  apparent  when  the  following  language  of 


486  LOWERY   V.    MANHATTAN   RAILWAY   CO.  [CHAP.  III. 

Mr.  Justice  Little  in  the  opinion  in  that  case  is  considered:  "The 
direct  and  proximate  cause  of  the  injury  which  the  plaintiff  sustained 
was  his  jumping  from  the  train;  and  if  he  is  entitled  to  recover  damages 
from  the  defendant  company  therefor,  it  is  because  of  some  negligence 
on  the  part  of  said  company  which  caused  the  jump  from  which  the 
injury  resulted,  or  negligence  in  not  protecting  the  place  where  in  fact 
he  did  jump.  As  we  have  seen,  it  is  not  charged  in  the  petition  that  the 
railroad  company  was,  through  its  conductor,  negligent  in  directing  the 
plaintiff  to  jump  from  the  car  at  the  time  he  did."  It  was  held  that  the 
failure  to  block  the  switch  was  not  an  act  of  negligence.^ 


LOWERY  V.  MANHATTAN  RAILWAY  CO. 

Court  of  Appeals  of  New  York,  1885. 

[Reported  99  A^.   Y.  158.] 

Miller,  J.  The  principal  question  arising  upon  this  appeal  relates 
to  the  right  of  the  plaintiff  to  recover  for  the  injuries  sustained. 

The  claim  of  the  defendant  is,  that  the  cause  of  the  injury  was  too 
remote  to  authorize  a  recovery  of  any  damages  whatever,  and  it  is 
urged  that  the  court  erred  in  denying  the  motion  to  dismiss  the  com- 
plaint, made  by  the  defendant's  counsel  on  the  ground  stated,  as  well 
as  in  the  charge  to  the  jury,  that  if  they  believed  "  that  the  coal  and 
ashes  fell  from  the  defendant's  locomotive,  through  any  negligence 
on  the  part  of  the  defendant,  its  servants  or  agents,  and  falling  upon 
the  horse,  caused  him  to  become  unmanageable  and  run  against  the 
plaintiff,  inflicting  injuries  upon  him,  then  the  defendant  is  liable  to  the 
plaintiff  for  his  damages,  occasioned  thereby."  The  same  question 
was  also  raised  by  the  defendant's  counsel  by  a  request  to  the  judge 
to  charge,  that  "  if  the  jury  believed  the  accident  occurred  through  the 
driver's  error  of  judgment  in  endeavoring  to  obtain  control  of  his  horse, 
the  plaintiff  cannot  recover,"  which  was  refused  and  an  exception  duly 
taken  to  the  decision. 

It  is  urged  by  the  appellant's  counsel  that  where  there  is  an  interme- 
diary agent  or  medium  between  the  primary  cause  of  the  injury  and  the 
ultimate  result,  the  rule  of  law  to  be  applied  is  that,  where  the  original 
act  complained  of  was  not  voluntary  or  intentional,  or  one  of  affirma- 
tive illegality,  or  in  itself  the  cause  of  criminal  complaint,  but  was 
caused  by  negligence,  the  responsibility  is  limited  to  the  necessary  and 
natural  consequences  of  the  act,  and  that  when  beyond  that,  they 
are  or  may  be  modified  or  shaped  by  other  causes,  they  are  too  remote 
to  be  the  foundation  of  legal  accountability. 

'  The  remainder  of  the  opinion  discusses  other  questions. 

See  Fine  t.  Interurban  St.  Ry.,  45  N.  Y.  Misc.  587,  91  N.  Y.  S.  43;  Kraut 
t.  Frankford  &  S.  P.  C.  P.  Ry.,  160  Pa.  327,  28  Atl.  783.  —  Ed. 


SECT,   v.]  LOWERY   V.   MANHATTAN    RAILWAY    CO.  487 

The  injury  sustained  by  the  plaintiff  was  caused  by  reason  of  fire 
falling  from  a  locomotive  of  the  defendant  upon  a  horse  attached  to  a 
wagon,  in  the  street  below  and  upon  the  hand  of  the  driver.  The 
horse  became  frightened  and  ran  away  and  the  driver  attempted  to 
guide  his  movements  and  drive  him  against  a  post  of  the  elevated  rail- 
road so  as  to  stop  him.  Failing  to  accomplish  this  he  intentionally 
turned  the  horse  and  attempted  to  run  him  against  the  curbstone 
to  make  it  heavy  for  him  and  so  arrest  his  progress,  but  the  wagon 
passed  over  the  curbstone  instead  of  being  arrested  by  it  and  threw  the 
driver  out  and  ran  over  and  injured  the  plaintiff. 

It  will  be  seen  that  the  injury  was  not  caused  directly  by  the  de- 
fendant, but  was  produced  through  the  instrumentality  of  the  horse 
and  driver,  the  latter  of  whom,  it  appears,  was  doing  all  that  lay  in  his 
power  and  exercising  his  best  judgment  in  attempting  to  stop  the  fright- 
ened animal  and  to  prevent  any  further  injury,  and  the  question  we 
are  called  upon  to  consider  here  is,  whether,  in  view  of  the  fact  that 
the  plaintiff  may  have  been  injured  by  reason  of  the  management  of 
the  horse  by  the  driver,  in  consequence  of  which  it  was  diverted  from 
the  natural  course  it  might  otherwise  have  taken,  the  defendant  is 
relieved  from  responsibility  for  the  result  of  the  accident. 

It  may  be  assumed  that  at  that  time  the  driver,  who  was  smarting 
from  the  effects  of  the  burning  coal  which  had  fallen  upon  his  hands, 
and  startled  by  the  suddenness  of  the  accident,  may  have  been  some- 
what disconcerted  by  the  peril  in  which  he  was  placed  and,  therefore, 
was  unable  to  manage  and  control  the  infuriated  animal  as  he  might 
otherwise  have  done.  The  law,  however,  makes  allowances  for  mis- 
takes and  for  errors  of  judgment  which  are  likely  to  happen  upon  such 
an  emergency.  It  does  not  demand  the  same  coolness  and  self-pos- 
session which  are  required  when  there  is  no  occasion  for  alarm  or  a  loss 
of  self-control. 

Where  a  person  is  traveling  upon  a  train  of  cars  and  a  collision  has 
taken  place  or  is  likely  to  occur,  and  he,  under  the  excitement  of  the 
moment,  jumps  from  the  train  and  thereby  increases  his  own  danger 
and  chances  of  injury,  although  the  act  of  attempting  to  escape  is  very 
hazardous  and  negligent,  yet  it  is  an  instinctive  act  which  naturally 
would  take  place  when  a  person  seeks  to  avoid  great  peril,  and  though 
wrong  in  itself,  that  fact  does  not  relieve  the  company  from  liability, 
if  its  negligent  conduct  and  a  sense  of  impending  danger  induced  the 
act. 

In  the  case  under  consideration,  the  driver  was  passing  along  in  pur- 
suit of  his  customary  business  dri\ang  his  horse,  when  suddenly  tiie 
faUing  of  the  fire  upon  himself  and  the  horse  placed  him  in  a  position 
of  great  danger,  and  he  was  justified  in  attempting  to  save  his  own 
life  and  protect  himself  from  injury.  If  he  made  a  mistake  in  his  judg- 
ment, the  company  was  not  relieved  from  liability.  If  he  had  allowed 
the  horse  to  continue  on  in  its  own  way,  it  is  by  no  means  clear  that  a 


488  LOWERY   V.    MANHATTAN   RAILWAY   CO.  [CHAP.  III. 

similar,  if  not  greater  injury  might  not  have  been  inflicted  upon  some 
other  person  than  the  plaintiff.  It  is  impossible  to  determine  what 
the  result  might  have  been  in  such  a  case,  and,  therefore,  it  is  indulging  in 
speculation  to  say  that  the  driver's  act,  under  the  circumstances,  was 
not  the  best  thing  that  could  have  been  done.  In  such  cases,  it  is 
difficult  to  disconnect  the  final  injury  from  the  primary  cause,  and  say 
that  the  damages  accruing  are  not  the  natural  and  necessary  result  of 
the  original  wrongful  act.  The  defendant  was  chargeable  with  an  un- 
lawful act,  which  inflicted  an  injury  upon  the  driver  and  the  horse  in 
the  first  instance,  and  ultimately  caused  the  injury  sustained  by  the 
plaintiff.  The  injury  originally  inflicted  was  in  the  nature  of  a  tres- 
pass, and  the  result  which  followed  was  the  natural  consequence  of  the 
act.  So  long  as  the  injury  was  chargeable  to  the  original  wrongful  act 
of  the  defendant,  it  is  not  apparent,  in  view  of  the  facts,  how  it  can 
avoid  responsibility.  There  v.as  no  such  intervening  human  agency  as 
would  authorize  the  conclusion  that  it  was  the  cause  of  the  accident 
and  therefore  it  cannot  be  said  that  the  damages  were  too  remote. 

The  company  would  clearly  be  liable  for  any  direct  injury  arising 
from  the  faUing  of  the  burning  coals  upon  the  horse  if  it  had  been  left 
to  pursue  its  own  course  uncontrolled  by  the  driver,  and  there  would 
seem  to  be  no  reason  why  it  would  not  be  equally  liable  where  the 
driver  seeks  to  control  the  horse  and  exercises  his  best  judgment  in 
endeavoring  to  prevent  injur3^  That  he  failed  to  do  so  for  want  of 
strength  or  by  reason  of  an  error  of  judgment  does  not  prevent 
the  application  of  the  principle  which  controls  in  such  a  case. 

It  may,  we  think,  be  assumed  that  such  an  accident  might  occur 
in  a  crowded  street  where  conveyances  are  constantly  passing,  and  that 
the  driver  of  the  horse,  who  might  possibly  be  injured  by  the  defendant's 
unlawful  act,  would  seek  to  guide  the  animal,  and  if  possible,  prevent 
unnecessary  injury.  The  action  of  the  driver,  in  \'iew  of  the  exigency 
of  the  occasion,  whether  prudent  or  otherwise,  may  well  be  considered 
as  a  continuation  of  the  original  act,  which  was  caused  by  the  negli- 
gence of  the  defendant,  and  the  defendant  was  liable  as  much  as  it 
would  have  been  if  the  horse  had  been  permitted  to  proceed  without 
any  control  whatever.  We  think  that  the  damages  sustained  by  the 
plaintiff  were  not  too  remote,  and  that  the  WTongful  act  of  the  defend- 
ant, in  allowing  the  coals  to  escape  from  the  locomotive,  thus  causing 
the  horse  to  become  frightened  and  run,  was  the  proximate  cause  of 
the  injury,  and  that  the  running  away  of  the  horse  and  the  collision 
with  the  plaintiff  were  the  natural  and  probable  consequences  of  the 
negligence  of  the  defendant. 

These  views  are  fully  sustained  by  the  decisions  of  the  courts.  (Scott 
V.  Shepherd,  2  W.  Black.  892;  Lynch  v.  Nurdin,  1  Ad.  &  El.  [N.  S.]  29; 
Former  v.  Geldmecher,  13  Rep.  790;  Vaughn  v.  Menlove,  32  Eng. 
C.  L.  613;  Guille  v.  Swan,  19  Johns.  381;  Thomas  v.  Winchester,  6 
N.  Y.  397;  Vandenburgh  v.  Truax,  4  Denio,  464;  Webb  v.  R.,  W.  & 


SECT,   v.]  LOWERY   V.    MANHATTAN    RAILWAY   CO.  489 

O.  R.  R.  Co.,  49  N.  Y.  420;  Pollett  v.  Long,  56  id.  200;  Putnam  t'. 
B'd'y>  etc.,  R.  R.  Co.,  55  id.  108.)  We  do  not  deem  it  necessary  to  ex- 
amine these  cases  in  detail,  and  while  it  may  be  said  that  in  some 
of  them  the  injury  was  caused  by  the  positive,  unlawful  act  of  the 
defendant  at  the  beginning,  in  others  the  original  act  was  lawful, 
while  the  consequence  which  followed  resulted  from  the  subsequent 
interference  with  the  plaintiff's  rights.  In  Guille  v.  Swan  (19  Johns. 
381,  supra),  the  act  of  setting  up  the  balloon  was  lawful  in  itself, 
and  the  injury  which  followed  was  the  result  of  its  falling  on 
the  premises  of  the  plaintiff  in  a  city,  and  attracting  the  attention  of 
people  outside,  and  thus  causing  the  damages  incurred.  In  the  case 
at  bar  the  falling  of  the  coals  on  the  horse  and  driver  was  caused  by  the 
negligence  of  the  defendants'  servants,  but  it  was,  nevertheless,  a  direct 
invasion  of  the  rights  of  the  property  and  person  of  the  driver  and 
the  owner  of  the  horse  and  wagon,  and  produced  the  injury  to  the 
plaintiff  the  same  as  the  falling  of  the  balloon  on  the  plaintiff's  premises 
in  the  case  last  cited.  We  are  unable  to  perceive  any  distinction  be- 
tween the  two  cases  which  would  justify  the  conclusion  that  the 
damages  to  the  plaintiff  here  were  more  remote  than  those  which  were 
incurred  in  the  case  last  cited.  The  principle  which  is  applicable  to 
both  cases  is  the  same;  it  is  not  apparent  that  any  distinction  can  be 
drawn  between  them  which  would  relieve  the  defendant  from  responsi- 
bility. It  is  enough  to  charge  the  defendant  that  it  was  the  author  and 
originator  of  the  wrongful  act  which  produced  the  injury  and  hence 
it  is  liable  for  the  same  as  one  of  the  natural  consequences  arising  from 
the  act  itself.  It  is  difficult  to  conceive  any  valid  ground  upon  which 
it  can  be  claimed  that  the  effect  of  the  defendant's  negligence  was  not 
a  probable  and  the  natural  consequence  following  the  same. 

We  are  referred  to  numerous  cases  cited  by  the  appellant's  counsel 
which,  it  is  claimed,  sustain  the  doctrine  contended  for  by  him,  and 
great  reliance  is  placed  upon  the  case  of  Ryan  v.  N.  Y.  C.  R.  R.  Co. 
(35  N.  Y.  210),  which  was  followed  and  sustained  in  Penn.  R.  R.  Co. 
V.  Kerr  (62  Penn.  St.  353).  In  the  Ryan  case  the  court  defined  re- 
mote damages  to  be  those  which  are  not  an  ordinary  and  natural,  not 
an  expected,  not  a  necessary  and  usual  result  of  the  negligent  act.  It 
appeared  in  that  case  that  the  fire  was  communicated  first  to  the  de- 
fendant's building  from  a  locomotive  on  its  road,  and  then  over  a  space 
of  one  hundred  and  thirty  feet  to  the  building  of  the  plaintiff,  and  it 
was  held  that  the  defendant  was  not  liable  for  the  reason  that  it  was 
not  to  be  anticipated  that  the  fire  would  be  communicated  to  premises 
not  contiguous.  This  is  far  different  from  a  case  where  a  direct  in- 
jury is  inflicted  upon  a  person  and  property;  as  in  the  case  at  bar 
it  was  inflicted  in  a  populous  city  upon  a  horse  and  driver,  and  caused 
the  horse  to  become  frightened  and  run  away,  and  it  can  scarcely  be 
claimed  that  the  consequence  which  ensued  was  not  the  probable  and 
direct  cause  of  the  injury  sustained. 


490  LOWERY  V.   MANHATTAN   RAILWAY   CO.  [CHAP.  III. 

The  two  cases  last  cited  were  considered  and  reviewed  by  Folger,  J., 
in  Webb  v.  R.  W.  &  O.  R.  R.  Co.  (49  N.  Y.  420,  supra).  In  that  case 
the  fire  was  communicated  by  live  coals  dropped  from  the  engine  and 
setting  fire  to  a  tie  on  the  track,  which  spreading  to  an  old  tie  by  the 
side  of  the  track,  and  from  that  to  some  rubbish,  and  then  to  the  fence 
along  the  track,  and  then  to  plaintilf 's  woodland,  did  the  damage  com- 
plained of,  and  it  was  held  that  the  defendant  was  liable  for  the  injury. 
It  is  laid  down  in  the  opinion  that  the  Ryan  case  held  that  the  action 
in  that  case  could  not  be  sustained  for  the  reason  that  the  damages  in- 
cmred  by  the  plaintiff  were  not  the  immediate  but  the  remote  result 
of  the  negligence  of  the  defendant,  and  it  was  stated  that  this  was  not 
a  new  rule.  Folger,  J.,  says  in  regard  to  that  case,  "The  pith  of  the 
decision  is  that  this  was  a  result  which  was  not  necessarily  to  be  antici- 
pated from  the  fact  of  the  firing  of  the  wood-shed  and  its  contents ;  that 
it  was  not  an  ordinary,  natural  and  usual  result  from  such  a  cause;  but 
one  dependent  upon  the  degree  of  heat,  the  state  of  the  atmosphere, 
the  condition  and  materials  of  the  adjoining  structures  and  the  direc- 
tion of  the  wind,  which  are  said  to  be  circumstances  accidental  and 
varying.  The  principle  applied  was  the  converse  of  that  enforced  in 
Vandenburgh  v.  Truax  (4  Denio,  464),  which  was  that  the  consequence 
complained  of  was  the  natural  and  direct  result  of  the  act  of  the  de- 
fendant. This  principle  is  said  in  the  Ryan  case  not  to  be  inconsistent 
with  that  which  controlled  the  disposition  of  the  latter  case,  and  to 
be  unquestionably  sound,  but  should  be  applied  according  to  sound 
judgment  in  each  case  as  it  arises."  After  referring  to  the  Pennsylvania 
decision  the  learned  judge  concludes  that  the  Ryan  case  was  not  con- 
trolling in  the  disposition  of  the  case  considered  more  than  the  long 
line  of  decisions  which  preceded  it. 

It  will  be  observed  that  the  Ryan  case  is  clearly  distinguishable 
from  the  case  at  bar  and  can  scarcely  be  held  to  be  applicable  to  the 
facts  presented  here  and  was  not  followed  in  the  case  last  cited,  although 
there  was  considerable  similarity  in  the  leading  facts  between  the  two 
cases.  It  certainly  should  not  be  held  to  be  controlling  where  there  was 
a  positive  and  unlawful  act  of  the  defendant  which,  as  we  have  seen, 
induced  the  accident  which  was  the  cause  of  the  plaintiff's  injury.  Nor 
have  the  courts  of  this  State  since  the  decision  of  Ryan  v.  N.  Y.  C, 
etc.  (supra),  held  that  it  established  any  new  or  different  rule  than 
the  one  which  has  long  existed  and  which  has  been  settled  by  repeated 
adjudications,  as  will  be  seen  by  the  citations  already  made. 

In  Pollett  V.  Long  (56  N.  Y.  200)  it  was  held  that  where  an  injury 
to  one  is  caused  by  and  is  the  natural  and  probable  result  of  the  wrong- 
ful act  or  omission  of  another,  such  other  is  liable  therefor  although 
other  causes,  put  in  motion  by  the  act  or  omission,  and  which  in  the 
absence  thereof  would  not  have  produced  the  result,  contribute  to 
the  injury.  It  appeared  in  this  case  that  the  defendant's  dam  had 
given  away  and  carried  away  a  dam  of  the  plaintiff,  and  by  increasing 


SECT,  v.]  MINER,    READ    &    GARRETTE    V.   McNAMARA.  491 

the  volume  of  water  tore  out  the  dam  of  a  third  party,  of  whom  plaintiff 
was  assignee,  and  the  court  charged,  in  substance,  that  defendant's 
negligence  must  have  been  the  sole  cause  of  the  injury  or  there  could  be 
no  recovery;  that  although  defendant's  dam  was  diefective  and  out  of 
repair,  and  in  consequence  gave  way,  if  there  was  sufficient  water 
in  the  middle  pond  when  its  dam  gave  way  to  materially  increase  the 
volume  and  force  of  the  stream,  then  plaintiff  could  not  recover  for 
injuries  to  the  lower  dam,  as  the  damages  would  be  too  remote.  This 
was  held  error.  Grover,  J.,  in  his  opinion,  after  stating  that  Ryan 
V.  N.  Y.  C.  R.  R.  Co.  and  Penn.  R.  R.  Co.  v.  Kerr  (supra)  were  cited 
in  supp)ort  of  the  charge,  and  after  discussing  the  Ryan  case,  says: 
"  Assuming  that  this  rule  was  correctly  applied  in  the  case  of  Ryan  v. 
New  York  Central,  ...  it  comes  far  short  of  sustaining  the  proposi- 
tion under  consideration."  It  will  be  seen  that  the  Ryan  case  is  clearly 
distinguishable  from  the  case  at  bar. 

We  have  carefully  examined  the  other  cases  in  this  State  which  are 
cited  and  relied  on  by  the  appellant's  counsel,  and  none  of  them  hold 
that  no  responsibility  exists  where  the  e\'idence  establishes  an  act  of 
the  defendant  which  was  the  cause  of  injury  to  a  third  person,  although 
that  injury  may  have  been  occasioned  by  the  intermediate  agency  and 
through  the  instrumentality  of  a  party  who  in  the  first  instance  was  the 
direct  object  from  which  sprang  the  final  result  which  was  the  cause  of 
the  damages  claimed.  We  think  that  no  such  case  can  be  found  in  the 
reports.  The  decisions  which  are  relied  upon  from  other  States  do  not 
present  a  state  of  facts  which  can  be  regarded  as  entirely  analogous 
to  the  case  at  bar;  and  even  if  any  of  them  may  be  considered  as  lean- 
ing in  the  direction  claimed,  in  view  of  the  fact  that  the  decisions  in  this 
State  are  to  the  contrary,  they  are  not  decisive  of  the  question  con- 
sidered. There  was  sufficient  ev-idence  of  the  defendant's  negligence  to 
submit  the  case  to  the  consideration  of  the  jury  as  was  done. 

There  was  no  error  in  the  charge  of  the  judge,  or  refusals  to  charge 
as  requested,  or  in  any  ruling  on  the  trial. 

The  judgment  was  right  and  should  be  affirmed. 

All  concur,  except  Rapallo,  J.,  dissenting,  and  Earl,  J.,  not  voting. 

Judgment    affirmed} 


MINER,  READ  &  GARRETTE  v.  McNAMARA. 
Supreme  Court  of  Errors  of  Connecticut,  1909. 

[Reported  81  Conn.  690.] 

Action  to  recover  for  the  loss  of  a  stock  of  merchandise  due  to  the 
collapse  and  fall  of  a  leased  building,  and  alleged  to  have  been  caused 
by  the  defendants'  negligence,  brought  to  and  tried  by  the  Superior 

1  See  also  Pratt  v.  Chicago  R.  I.  &  P.  Rv.,  107  la.  287,  77  N.  W.  1064;  Drommie 
V.  Hogan,  153  Mass.  29,  26  N.  E.  2.37.  —  Ed. 


492  MINER,    READ    &    GAKRETTE   V.    McNAMARA.       [CIIAP.  III. 

Court  in  New  Haven  County,  Robinson,  J.,  upon  a  demurrer  to  the 
complaint  filed  by  one  of  the  defendants;  the  court  sustained  the  de- 
murrer and  rendered  judgment  for  that  defendant,  from  which  the 
plaintiff  appealed.-     No  error. 

The  complaint  alleges,  in  substance,  the  following  facts:  The  de- 
fendant McNamara,  on  May  1st,  1907,  leased  to  the  plaintiffs  for  the 
term  of  five  years,  for  the  general  purpose  of  a  warehouse  in  their  busi- 
ness as  wholesale  grocers,  a  four-story  brick  building  known  as  No. 
44-46  Union  Street,  Bridgeport.  About  a  month  after  the  plaintiffs 
had  taken  possession,  and  when  they  had  merchandise  valued  at  up- 
ward of  $14,000  stored  therein,  the  building  collapsed  and  fell,  thereby 
destroying  the  plaintiffs'  property. 

McNamara,  through  his  agents  and  servants,  his  co-defendants  in 
this  action,  had  erected  the  building  a  short  time  previous  to  leas- 
ing it  to  the  plaintiffs.  Before  its  construction  he  had  filed  with  the 
board  of  building  commissioners  of  the  city  of  Bridgeport,  in  accord- 
ance with  one  of  its  ordinances,  a  clear  statement  in  writing  of  the  pro- 
posed building,  together  with  a  copy  of  the  plans  and  specifications 
of  the  same,  and  had  obtained  from  that  board  a  permit  authorizing 
him  to  construct  the  building  in  accordance  with  those  plans  and  speci- 
fications. No  other  statement  or  copy  of  plans  was  ever  filed  by  him 
with  the  board,  and  no  permit,  special  or  otherwise,  was  ever  issued  by 
the  board  permitting  any  change  in  the  plans  and  specifications  of  the 
building.  McNamara  and  his  co-defendants  in  erecting  the  building 
departed  from  the  plans  and  specifications,  in  that  the  building  erected 
was  four  stories  in  height  instead  of  three  stories,  as  therein  specified, 
and  the  walls  were  substantially  less  in  thickness,  and  the  supporting 
piers  less  in  number  and  smaller  in  dimension,  than  those  provided 
for  in  the  plans  and  specifications.  The  walls,  as  constructed,  also 
violated  an  ordinance  of  the  city  of  Bridgeport  designating  the  thick- 
ness of  walls  in  buildings  of  the  height  and  plan  of  construction  of  this 
one,  when  situated,  as  this  was,  within  the  fire  limits  of  the  city. 
The  defendant  The  S.  W.  Hubbell  Building  Company  did  the  carpenter 
work  in  said  building,  and  was  negligent  in  the  performance  of  it,  in 
that  the  timber  used  was  unsound,  insufficient  in  size  and  strength, 
and  not  of  proper  quality  to  be  used  in  the  construction  of  a  building 
of  its  character,  and  unfit  for  the  support  of  the  floors,  walls  and 
ceilings  thereof,  and  in  that  the  floors,  walls  and  ceilings  were  not 
properly  supported,  braced  and  strengthened  so  as  to  bear  such  rea- 
sonable weight  as  is  customarily  put  upon  the  floors,  walls  and  ceilings 
of  buildings  of  similar  construction,  and  such  strain  as  said  Building 
Company  knew  would,  in  the  ordinary  course,  be  put  upon  the  floors, 
walls  and  ceilings  of  the  building. 

The  defendant  McNamara,  at  the  time  he  leased  the  building  to  the 
plaintiffs,  knew  that  in  the  construction  of  the  building  the  city  ordi- 
nance had  been  violated  as  above  stated,  that  the  building  did  not  con- 


SECT,  v.]  MINER,    READ   &   GARRETTE    V.  McNAMARA.  493 

form  to  the  plans  and  specifications  which  he  filed  with  the  board  of 
building  commissioners,  that  the  carpenter  work,  mason,  stone,  brick 
and  iron  work,  had  been  negligently  and  improperly  done,  that  the 
materials  were  of  improper  and  inferior  quality,  and  the  walls,  floors, 
ceilings,  roof  and  supports  thereof  were  weak  and  insufficient,  and  that 
the  whole  building  was  in  a  dangerous,  ruinous  and  dilapidated  con- 
dition and  likely  to  fall  and  collapse  if  the  building  were  in  any  way 
used  or  any  strain  or  weight  put  upon  the  floors,  walls  or  ceilings  thereof. 
None  of  these  facts  were  known  to  the  plaintiffs  or  any  of  them,  and 
could  not  be  discovered  by  an  ordinary  inspection  or  by  any  inspection 
which  the  plaintiffs  or  any  of  them  were  capable  of  making.  The 
collapse  and  fall  of  the  building  were  due  entirely  to  the  neglect  of 
the  several  defendants  as  above  set  forth,  to  the  improper  and  inferior 
materials  used  in  said  construction,  and  to  the  negligent,  improper, 
unsafe  and  unlawful  plan  and  manner  in  which  the  work  was  done. 

The  defendant  The  S.  W.  Hubbell  Building  Company  demurred 
to  the  complaint,  assigning  as  reasons  that  there  was  no  privity  between 
it  and  the  plaintiffs,  its  contract  ha\'ing  been  with  the  owner  of  the  land 
and  its  work  done  long  before  the  plaintiffs  leased  the  building;  that 
there  was  no  causal  connection  between  its  negligence  and  the  plain- 
tiffs' injury;  and  that  it  had  made  no  representation  to  the  plaintiffs 
that  the  building  was  safe,  had  no  contractual  or  other  relations  with 
them,  and  had  no  occupation  of  said  building  or  control  over  it  or  duty 
toward  it  at  the  time  of  the  accident  and  for  a  long  time  prior  thereto. 

Thayer,  J.  Whether  this  defendant  (The  Hubbell  Building  Com- 
pany) is  liable  for  the  plaintiff's  injury,  depends  upon  whether  its  negli- 
gent or  unlawful  act  was  the  proximate  cause  of  that  injury.  "That 
only  is  a  proximate  cause  of  an  event,  juridically  considered, 
which,  in  a  natural  sequence,  unbroken  by  any  new  and  intervening 
cause,  produces  that  event,  and  without  which  that  event  would  not 
have  occurred."  Smith  v.  Connecticut  Ry.  &  Ltg.  Co.,  80  Conn.  268, 
270,  67  Atl.  888.'  The  last  conscious  agent  in  producing  the  injury  is 
the  party  liable  for  it.  1  Beven  on  Neg.  in  Law  (3d  ed.)  53.  The 
law  does  not  search  for  the  more  remote  agencies  by  which  the  injury 
was  brought  about  or  made  possible. 

It  appears  from  the  complaint  that  the  owner  of  the  building, 
after  it  was  completed  and  when  this  defendant  had  nothing  further 
to  do  with  it,  with  full  knowledge  that  it  did  not  conform  to  the  plans 
and  specifications  and  to  the  requirements  of  the  city  ordinance,  that 
the  workmanship  and  materials  were  poor,  and  that  the  building  was 
weak  and  dangerous  and  likely  to  collapse  and  fall  if  it  were  in  any  way 
used  or  any  strain  put  upon  its  floors  or  walls,  leased  it  to  the  plain- 
tiffs, by  whom  the  facts  were  not  known  nor  discoverable  by  ordinary 
inspection  or  by  any  inspection  which  they  were  capable  of  making. 

The  tenant  ordinarily  takes  the  risk  as  to  the  condition  of  the  premises 
which  he  leases.    Gallagher  v.  Button,  73  Conn.  172,  175,  46  Atl.  819. 


494  MINEK,    HEAD    &    GARRETTE    V.  McNAMARA.       [CHAP.  III. 

But  when  there  are  secret  structural  defects  in  the  premises  which 
render  them  dangerous  for  occupancy,  known  to  the  lessor  but  unknown 
to  and  undiscoverable  by  the  lessee  by  careful  inspection,  the  law  im- 
poses a  duty  upon  the  lessor  to  make  such  condition  known  to  the  ten- 
ant; and  failure  to  do  so  is  negligence  on  his  part  which  makes  him 
liable  for  any  injury  which  results  to  the  tenant  from  such  defective 
and  dangerous  condition.  Cowen  v.  Sunderland,  145  Mass.  363,  364, 
14  N.  E.  117;  Booth  v.  Merriam,  155  Mass.  521,  522,  30  N.  E.  85; 
McKenzie  i'.  Cheetham,  83  Me.  543,  549,  22  Atl.  469;  Scott  v.  Simons, 
54  N.  H.  426,  431;  Gallagher  v.  Button,  73  Conn.  172,  46  Atl.  819. 
This  is  precisely  the  case  presented  by  the  complaint,  as  between  the 
plaintiffs  and  McNamara,  the  owner  of  the  building.  His  negligence 
w'as  the  proximate  cause  of  their  injury,  upon  the  allegations.  That 
injury  cannot  be  attributed  to  this  defendant's  negligence  in  failing  to 
construct  a  proper  building.  Its  dangerous  condition  may  have  been 
due,  in  whole  or  in  part,  to  this  defendant's  negligence,  but  that  neg- 
ligence was  not  the  proximate  cause  of  the  plaintiffs'  injury,  because 
a  new  conscious  agent,  knowing  of  the  existence  of  that  condition,  in- 
tervened, and  instead  of  so  acting  as  to  prevent  the  injury  acted  so 
negligently  as  to  cause  it. 

Nor  can  it  be  said  that,  omitting  the  allegation  that  the  owner 
neglected  to  disclose  to  the  plaintiffs  the  dangerous  condition  of  the 
property,  a  good  cause  of  action  against  this  defendant  is  stated  in  the 
complaint.  If  he  made  such  disclosure,  the  plaintiffs  could  not  recover 
against  him,  because,  in  that  case,  they  accepted  their  term  and  oc- 
cupied the  property  at  their  own  risk.  It  would  be  strange  if,  in 
such  a  case,  they  could  recover  against  his  servant,  who  under  his  di- 
rection had  used  improper  materials  and  otherwise  taken  part  in  the 
improper  construction.  The  same  reason  which  would  prevent  their 
recovery  against  the  owner  —  their  own  intervening  negligence  — 
would  prevent  their  recovery  against  the  defendant. 

It  is  not  alleged  or  claimed  that  the  owner  was  ignorant  of  the 
manner  in  which  the  building  was  constructed;  on  the  contrary,  it  is 
alleged  in  the  complaint  and  was  insisted  on  in  the  brief  and  argument 
in  behalf  of  the  plaintiffs,  that  he  caused  it  to  be  so  constructed  by 
his  agents  and  servants  and  had  full  knowledge  of  its  condition. 

Whether  the  negligence  complained  of  was  the  \aolation  of  a  duty 
imposed  by  the  common  law  or  of  one  imposed  by  the  city  ordinance, 
that  negligence  must  have  been  the  proximate  cause  of  the  plaintiffs' 
injury  to  warrant  a  recovery.  There  is  no  ground  for  distinction  be- 
tween the  two.  Broschart  v.  Tuttle,  59  Conn.  1,  20,  21  Atl.  925.  In 
neither  case  can  the  plaintiffs  recover,  for  the  reasons  already  stated. 
It  is  unnecessary,  therefore,  to  consider  whether  the  present  defendant's 
violation  of  the  ordinance  could  in  any  case  create  a  cause  of  action  in 
favor  of  a  party  injured  in  consequence  of  such  \'iolation. 

The  complaint  shows  that  there  was  no  causal  connection  between 


SECT,  v.]  FOWLES    V.    BKIGGS.  495 

the  negligence  of  this  defendant  and  the  injury  of  the  plaintiffs,  and  the 
demurrer  was  therefore  properly  sustained. 

There  is  no  error. 

In  this  opinion  the  other  judges  concurred.^ 


FOWLES  V.   BRIGGS. 
Supreme  Court  of  Michigan,  1898. 

[Reported  116  Mich.  425.] 

Montgomery,  J.  Alexander  T.  Fowles,  plaintiff's  intestate,  on  the 
4th  day  of  February,  1896,  was  an  employee  of  the  Flint  &  Pere  Mar- 
quette Railroad  Company.  His  employment  was  that  of  rear  brake- 
man  on  a  freight  train.  The  defendants,  lumber  dealers,  loaded  a 
flat  car  with  lumber,  in  their  yard  in  the  city  of  Saginaw,  and  shipped 
it  over  the  Flint  &  Pere  Marquette  Railroad  Company,  to  Toledo, 
Ohio.  The  lumber  was  maple,  11,000  feet,  weighing  about  33,000 
pounds,  and  piled  flat  upon  the  car  in  two  tiers  parallel  with  the  sides 
of  the  car.  It  was  put  upon  this  flat  car  by  the  defendants  three  days 
before  the  day  of  the  accident.  The  testimony  of  the  plaintiff  tended 
to  show  that  the  railroad  crew,  of  whom  the  deceased  was  rear  brake- 
man,  were  ordered  by  the  railroad  company,  on  the  morning  of  the  4th 
of  February,  to  make  up  some  freight  trains  for  transportation;  and, 
in  the  line  of  their  duty,  this  car  load  of  lumber  was  shunted  at  a 
rate  not  to  exceed  from  three  to  five  miles  an  hour  upon  a  level  track 
towards  a  box  car.  The  deceased  was  upon  the  ground,  and  stepped 
in  between  the  box  car  and  the  car  load  of  lumber  for  the  purpose  of 
coupling  the  two;  and,  when  the  car  of  lumber  came  in  contact  with 
the  box  car,  the  lumber  shifted  25  inches  upon  the  surface  of  the 
flat  car,  and  crushed  to  death  the  deceased,  by  pinning  him  against 
the  end  of  the  box  car. 

The  plaintiff's  declaration  declares  the  several  acts  of  negligence 
of  the  defendants  to  be: 

1.  That  they  carelessly  and  recklessly  loaded  said  flat  car  of  said 
railroad  company  so  as  to  cause  the  death  of  the  deceased  by  the 
shifting  of  the  lumber  while  upon  said  car;  that  said  lumber  was  so 
loaded  upon  said  car  that  it  was  not  safe  for  an  employee  of  said  rail- 
road company  to  couple  it  to  another  car,  and  that  said  danger  was 
not  apparent  to  the  deceased. 

2.  That  it  was  the  duty  of  said  defendants  not  to  ship  maple  lumber 
upon  a  flat  car  without  ha\'ing  the  lumber  so  fastened  and  staked  as 
to  hold  it  from  shifting. 

1  See  also  Parsan  v.  New  York  Breweries  Co.,  208  N.  Y.  337,  101  N.  E.  879.—  Ed. 


496  rowLEs  v.  briggs.  [chap.  hi. 

3.  That  a  piece  of  timber  or  other  material  should  have  been  placed 
crosswise  upon  the  floor  and  near  the  ends  of  said  flat  car,  under  the 
lumber,  for  the  purpose  of  elevating  the  extreme  ends  of  the  lumber. 

4.  That  the  defendants  loaded  this  lumber  upon  the  deck  of  said  car 
while  the  deck  was  covered  with  ice  and  snow  and  sleet,  and  in  a  slippery 
condition. 

5.  That  the  lumber  was  covered  with  ice  and  snow  and  sleet,  and  in 
a  slippery  condition. 

6.  That  the  lumber  should  have  been  placed  in  a  box  car,  and  not 
upon  a  flat  car. 

The  cause  was  tried  before  a  jury,  and,  after  the  proofs  were  all  in, 
the  trial  judge  said  to  the  jury  that  "the  evidence  fails  to  show  that 
the  defendants  vnolated  any  legal  duty  that  they  owed  the  deceased. 
Consequently  there  is  no  question  of  fact  to  be  submitted  to  you  for 
your  consideration.  Your  verdict,  therefore,  will  be  in  favor  of  the 
defendants  of  no  cause  of  action." 

The  deceased  had  no  contract  relations  with  the  defendants,  and,  if 
his  representative  has  a  right  of  action  based  upon  defendants'  negli- 
gence, it  must  rest  upon  a  duty  owed  to  deceased  in  common  with  all 
other  employees  of  the  Flint  &  Pere  Marquette  Railroad  Company,  or 
other  road  over  which  the  car  in  question  might  ultimately  be  shipped; 
in  short,  a  breach  of  a  duty  owing  to  the  public.  An  accurate  statement 
of  this  duty  is : 

"  If  a  person  undertakes  to  do  an  act  or  discharge  a  duty  by  which  the 
conduct  of  others  may  properly  be  regulated  and  governed,  he  is  bound 
to  perform  it  in  such  manner  that  those  who  are  rightfully  led  to  a  course 
of  conduct  or  action  on  the  faith  that  the  act  or  duty  wdll  be  duly  and 
properly  performed  shall  not  suffer  loss  or  injury  by  reason  of  his  neg- 
ligence."   Whart.  Neg.  §  437. 

Yet,  as  stated  by  the  same  author,  the  consequence  must  be  imme- 
diate, or  the  action  fails.  In  other  words,  there  must  be  causal  con- 
nection between  the  negligence  and  the  hurt,  and  such  causal  connec- 
tion is  interrupted  by  the  interposition  between  the  negligence  and  the 
hurt  of  an  independent  human  agency.  Id.  §  438.  In  the  present  case 
the  defendants  owed  the  railroad  company  the  duty  of  using  ordinary 
care  in  loading  the  car  in  question ;  but,  before  the  car  came  to  decedent, 
it  was  the  duty  of  the  railroad  company  to  provide  for  the  inspection. 
Here  was  the  intervention  of  an  independent  human  agency.  A  leading 
case  is  Winterbottom  v.  Wright,  10  Mees.  &  W.  109,  in  which  case  it 
was  held  that  the  defendant,  who  had  contracted  with  the  postmaster 
general  to  provnde  a  mail  coach,  and  keep  it  in  repair,  was  not  liable 
to  an  employee  of  one  Atkinson,  who  had  contracted  with  the  post- 
master general  to  provide  horses  and  coachmen  for  the  purpose  of 
carrying  the  mail.  See,  also,  Losee  v.  Clute,  51  N.  Y.  494  (10  Am. 
Rep.  638);  Goodlander  Mill  Co.  v.  Standard  Oil  Co.,  11  C.  C.  A.  253, 
63  Fed.  400;  Loop  v.  Litchfield,  42  N.  Y.  351  (1  Am.  Rep.  543);  Roddy 


SECT,  v.]  FOWLES   V.    BRIGGS.  497 

V.  Railway  Co.  104  Mo.  234  (24  Am.  St.  Rep.  333).  In  Necker  v. 
Harvey,  49  Mich.  519,  the  leading  cases  on  this  point  are  cited  \vith 
approval  by  Mr.  Justice  Cooley. 

Plaintiff  seeks  to  bring  this  case  within  a  line  of  cases  cited  creating 
an  apparent  exception  to  the  rule  stated ;  but  we  think  these  cases  may 
be  all  classed  as  coming  under  one  of  three  heads:  First,  as  in  Johnson 
V.  Spear,  76  Mich.  139  (15  Am.  St.  Rep.  298),  where  the  fault  was  not 
keeping  defendant's  premises  in  a  suitable  and  safe  condition;  or, 
second,  as  in  Roddy  v.  Railway  Co.,  supra,  where  the  defendant  re- 
serves the  right  to  direct  the  manner  of  work,  or  undertakes  to  supply 
the  instrumentahties.  Of  this  class  is  also  Elliott  v.  Hall,  15  Q.  B.  Div. 
315,  relied  upon  by  plaintiff,  in  which  case  it  was  said  b^-  the  court 
that  "the  defendant  had  entire  dominion  over  the  truck"  which 
caused  the  injury, —  a  fact  which  distinguishes  the  case  from  the 
present.  Cases  belonging  to  a  third  class,  more  closely  analogous  to 
the  case  under  consideration,  have  arisen  where  the  shipper  of  a 
dangerous  substance,  the  character  of  which  is  not  made  known  to 
the  carrier,  has  been  held  liable.  But  liability  in  this  class  of  cases 
has  been  limited  to  instruments  and  articles  in  their  nature  calculated 
to  do  injury.  Davidson  v.  Nichols,  11  Allen,  514.  We  think  the  case 
of  Chapman  v.  Atlantic  Refining  Co.,  38  Hun,  637,  and  108  N.  Y.  638, 
which  counsel  for  plaintiff  cite  as  fully  sustaining  their  contention,  is 
clearly  distinguishable  from  the  present  case.  The  statement  of  facts 
in  that  case  is  found  in  New  York,  etc.,  R.  Co.  v.  Atlantic  Refining  Co., 
129  N.  Y.  598,  from  which  it  appears  that  the  defendant  corporation 
was  engaged  in  constructing  some  oil  tanks  on  the  line  of  the  New 
York,  Lake  Erie  &  Western  Railroad  Company,  at  a  place  called 
Dykes'  Switch.  The  employees  of  defendant  left  a  car  of  lumber, 
after  it  had  been  delivered  to  defendant,  and  partly  unloaded,  in  such 
unsafe  condition  that  a  portion  of  the  lumber  fell  upon  or  was  blown 
upon  the  track  of  the  railroad  company,  causing  the  derailment  of  the 
engine  operated  by  the  plaintiff.  Chapman.  It  will  be  seen  that  the 
defendant  had  complete  control  over  the  partly-unloaded  car,  and  what- 
ever duty  was  owing  was  owing  by  defendant.  In  the  present  case  the 
defendants  had  parted  with  the  control  of  the  car.  The  railroad  com- 
pany owed  the  duty  to  decedent  of  causing  an  inspection  or  of  providing 
a  rule  for  inspection. 

We  think  the  circuit  judge  was  right  in  his  holding. 

Judgment  affirmed. 

The  other  Justices  concurred.^ 

1  See  also  Texas  &  P.  Ry.  v.  Carlin.  Ill  Fed.  777;  Kiser  v.  Suppe,  (Mo.  App.)  112 
S.  W.  1005;  Pittsfield  C.  M.  Co.  v.  Pittsfield  Shoe  Co.,  72  N.  H.  546, 58  Atl.  242.  —Ed. 


498 


LOCKE    V.   STEAKNS. 


[chap.  IV. 


CHAPTER  lY. 
LIABILITY  IRRESPECTIVE   OF  PROXIMATE  CAUSATION. 


SECTIOxV   I. 

Respo7ideat  Superior. 

HERN   V.  NICHOLS. 
Nisi  Prius.    17 — . 

[Reported  1  Salk.  289.] 

In  an  action  on  the  case  for  a  deceit,  the  plaintiff  set  forth,  that 

he  bought  several  parcels  of  silk  for silk,  whereas  it  was  another 

kind  of  silk;  and  that  the  defendant,  well  knowing  this  deceit,  sold  it 

him  for silk.    On  trial,  upon  not  guilty,  it  appeared  that  there  was 

no  actual  deceit  in  the  defendant  who  was  the  merchant,  but  that  it 
was  his  factor  beyond  sea:  And  the  doubt  was.  If  this  deceit  could 
charge  the  merchant?  And  Holt,  C.  J.,  was  of  opinion  that  the  mer- 
chant was  answerable  for  the  deceit  of  his  factor,  though  not  criminal- 
iter,  yet  civiliter;  for  seeing  somebody  must  be  a  loser  by  this  deceit, 
it  is  more  reason  that  he  that  emplo^^s  and  puts  a  trust  and  confidence 
in  the  deceiver  should  be  a  loser,  than  a  stranger :  And  upon  this  opinion 
the  plaintiff  had  a  verdict. 


LOCKE  V.   STEARNS. 
Supreme  Judicial  Court  of  Massachusetts,  1840. 

[Rrporlcd  1   Met.  560.] 

Trespass  upon  the  case  in  the  nature  of  deceit.  The  declaration 
alleged  that  the  defendants  fraudulently  sold  to  the  plaintiff  divers 
quantities  of  meal,  as  and  for  linseed  meal,  which  was  in  fact  a  mixture 
of  linseed  meal  and  teelseed  meal;  the  latter  being  of  a  quality  inferior 
to  the  former,  and  of  less  value.  The  action  was  commenced  against 
G.  L.  Stearns,  H.  L,  Stearns,  and  G.  C.  Hall,  but  the  writ  was  not 
served  on  Hall. 


SECT.  I.]  LOCKE    V.    STEAR^IS.  499 

At  the  trial  in  the  court  of  common  pleas,  before  Strong,  J.,  it  was 
proved  or  admitted,  that  the  three  persons  above  mentioned  were 
in  partnership  in  the  business  of  manufacturing  oil  from  linseed,  at 
their  factory  in  Medford;  that  the  selling  of  linseed  meal  was  within 
the  regular  business  of  said  partnership;  that  the  meal  mentioned  in 
the  plaintiff's  declaration  was  sold  to  him  as  hereinafter  stated;  and 
that,  at  the  time  of  the  sale  thereof,  L.  Richardson  was  the  foreman 
of  the  defendants  in  their  said  factory. 

It  was  in  evidence  that  teelseed  was  recently  introduced  into  this 
country,  and  that  the  defendants  began  to  use  it  in  the  making  of  oil, 
as  a  substitute  for  linseed,  in  the  latter  part  of  the  year  1837;  and  ^hat 
they,  or  some  of  them,  began  to  mix  the  teelseed  meal  with  the  linseed 
meal,  about  the  middle  of  January,  1838:  That  said  Richardson,  about 
that  time,  was  directed  by  G.  L.  Stearns,  to  mix  the  two  kinds  of  meal, 
and  that  H.  L.  Stearns  had  said  that  "they  put  in  one  half  teelseed 
meal,  in  the  meal  which  they  sold;  and  that  their  cattle  would  not  eat 
the  teelseed  meal,  unless  linseed  meal  was  mixed  with  it":  That  the 
meal  mentioned  in  the  plaintiff's  declaration  was  sold  to  him  at  differ- 
ent times,  during  a  period  of  several  months,  as  linseed  meal,  by 
Richardson,  or  by  one  of  the  defendants;  that  said  meal,  or  portions 
of  it,  was  a  mixture  of  teelseed  and  Hnseed;  but  that  the  plaintiff  had 
no  notice  that  it  was  not  all  linseed  meal;  and  that  said  meal,  so  mixed, 
was  of  less  value  than  clear  linseed  meal. 

Among  other  instructions,  given  by  the  judge  to  the  jury,  were 
these:  "  1.  That  if  one  of  the  defendants  sold  the  meal  to  the  plaintiff, 
such  defendant  knowing  that  teelseed  meal  was  of  an  inferior  quality 
and  less  value  than  linseed  meal,  this  knowledge  would  bind  all  the 
defendants,  and  be  the  same  as  if  they  all  knew  it.  2.  That  if  L. 
Richardson,  as  foreman  of  the  defendants,  acting  within  the  scope  of 
his  authority,  sold  the  meal  to  the  plaintiff,  he  (Richardson)  knowing 
that  teelseed  meal  was  of  an  inferior  quality  and  of  less  value  than 
linseed  meal,  this  knowledge  would  bind  the  defendants,  and  be  the 
same  as  if  the  defendants  knew  it." 

A  verdict  was  found  for  the  plaintiff,  and  the  defendants  alleged 
exceptions  to  the  above  instructions. 

Shaw,  C.  J.  Most  of  the  questions,  in  the  present  case,  turned 
upon  matters  of  fact  and  were  decided  by  the  jury.  The  evidence, 
taken  in  connection  with  the  verdict,  shows  that  the  purpose  of  the 
plaintiff  was  to  purchase  of  the  defendants  linseed  meal,  and  that  the 
defendants,  who  carried  on  the  business  of  manufacturing  oil  from 
seed,  so  understood  it,  but  that  they,  that  is,  one  of  them  personally, 
when  present,  and  their  foreman  and  general  agent,  acting  within  the 
scope  of  his  authority,  when  they  were  absent,  delivered  to  the  plaintiff 
an  inferior  article,  called  teelseed  meal,  mixed  with  the  linseed,  in  such 
a  manner  as  to  deceive  the  plaintiff,  who  purchased  and  paid  for  the 
whole  as  Hnseed,  without  knowledge  of  such  mixture. 


500  LOCKE   V.    STEARNS.  '  [CUAI'.  IV. 

The  defendants  object  to  two  of  the  instructions  of  the  court  of 
common  pleas,  as  being  incorrect  in  point  of  law.  [Here  the  chief 
justice  stated  the  instructions  excepted  to.]  But  we  are  of  opinion 
that  both  those  instructions  were  right.  For  although  the  action  in 
form  charges  the  defendants  jointly  for  a  deceit  done  by  one  only, 
or  by  an  agent,  yet  it  is  still  a  civil  action,  and  the  claim  is  for  damages. 

The  deceit  was  done  for  the  defendants'  benefit,  by  their  agent 
acting  under  their  orders,  in  the  conduct  of  their  general  business,  and 
responsible  to  them ;  and  when  one  party  must  suffer  by  the  wrong  and 
misconduct  of  another,  it  is  more  reasonable  that  he  should  sustain 
the  loss,  who  reposes  the  confidence  in  the  agent,  than  he  who  has 
given  no  such  confidence.  Hern  v.  Nichols,  1  Salk.  289.  The  point  is 
well  illustrated  by  the  law  of  insurance,  where  the  party  is  always  held 
responsible  cimliter,  for  the  fraudulent  misrepresentation  or  other  deceit, 
or  for  the  negligence,  of  his  agent.  Fitzherbert  v.  Mather,  1  T.  R.  12. 
But  the  rule  is  not  confined  to  cases  of  insurance,  in  relation  to  which 
a  somewhat  stricter  morality,  perhaps,  is  held  to  prevail;  but  it  is 
laid  down  as  a  general  rule  of  the  common  law,  that  the  principal  is 
civilly  responsible  for  the  acts  of  his  agent.  Doe  v.  Martin,  4  T.  R.  66. 
In  a  late  case,  in  which  it  was  held  that  a  master  was  liable  for  the  acts 
of  his  servant  in  a  case  quasi  criminal  —  as  for  penalties  incurred  by  a 
violation  of  the  revenue  laws  —  it  was  taken  for  granted,  on  all  sides, 
that  for  deceit  in  articles  sold  by  a  servant  in  the  shop  of  his  master, 
or  for  acts  done  in  the  manufacture  of  articles  in  a  manufactory  usually 
carried  on  by  the  master,  the  latter  is  answerable.  Attorney  General 
r.  Siddon,  1  Tyrw.  41.  S.  C.  1  Crompt.  &  Jerv.  220.  The'rule  pro- 
ceeds upon  the  ground  that  the  servant  is  acting  within  the  scope  of 
his  authority,  actual  or  constructive.  The  case  of  a  sheriff  who  is 
liable  civiliter,  even  in  an  action  of  trespass,  for  the  misconduct  of  his 
deputy,  is  another  familiar  application  of  the  same  rule.  Grinnell  v. 
Phillips,  1  Mass.  530.  The  rule  is  laid  down  generally,  in  a  recent  com- 
pilation of  good  authority,  that  though  a  principal,  in  general,  is  not 
liable  criminally  for  the  act  of  his  agent,  yet  he  is  ci\illy  liable  for  the 
neglect,  fraud,  deceit,  or  other  wrongful  act  of  his  agent  in  the  course  of 
his  employment,  though  in  fact  the  principal  did  not  authorize  the 
practice  of  such  acts;  but  the  wrongful  or  unlawful  acts  must  be  com- 
mitted in  the  course  of  the  agent's  employment.  3.  Chit.  Law  of  Com. 
&  Man.  209,  210. 

As  to  the  other  point,  which  is  indeed  little  more  than  a  further 
application  of  the  same  principle,  it  is  laid  down,  as  the  general  rule, 
that  one  partner  is  liable  civiliter  for  damages  sustained  by  the  deceit 
or  other  fraudulent  act  of  his  copartner  done  within  the  scope  of  his 
general  partnership  authority.  Colly er  on  Partnership,  241.  Rapp  v. 
Latham,  2  Barn.  &  Aid.  795.    Willet  v.  Chambers,  Cowp.  814. 

Two  cases  were  cited,  by  the  counsel  for  the  defendant,  to  support 
the  contrary  doctrine;  but  we  think  they  are  both  distinguishable  from 


I 


SECT.  I.]  HIGGINS   V.  WATEKYLIET   TURNPIKE    CO.  501 

the  present.  In  Pierce  v.  Jackson,  6  Mass.  245,  it  is  said  by  Parsons, 
C.  J.,  in  the  course  of  his  opinion,  that  "a  fraud  committed  by  one  of 
the  partners  shall  not  charge  the  partnership."  This  must  be  taken 
in  connection  with  the  subject  matter  to  which  it  was  applied.  That 
action  was  not  brought  by  an  innocent  party  who  had  sustained  damage 
by  the  fraudulent  act  of  a  partner  in  the  course  of  the  partnership 
business.  On  the  contrary,  it  was  a  case  of  competition  between 
different  classes  of  creditors,  one  of  whom  was  a  creditor  of  one  of  the 
partners,  and  the  other  claimed  a  preference  as  creditor  of  the  firm. 
But  it  appeared  that  one  of  the  partners  had,  by  fraud  and  by  means  of 
a  forged  indorsement  of  a  note,  given  or  attempted  to  give  the  latter 
creditor  a  preference  to  which  he  was  not  entitled.  It  was  in  reference 
to  this  transaction  that  the  remark  above  cited  was  made.  The  plain- 
tiff, in  that  case,  must  have  been  in  collusion  with  one  of  the  partners 
to  obtain  an  undue  preference;  and  to  have  sustained  the  claim  of 
preference,  under  those  circumstances,  would  have  been  to  give  effect 
to  a  fraudulent  and  collusive  act,  in  favor  of  a  party  to  the  collusion, 
against  an  honest  creditor. 

The  other  case  cited  was  Sherwood  v.  Marwick,  5  Greenl.  295. 
In  that  case,  two  persons  were  the  beneficial  owners  of  a  foreign  vessel 
held  in  the  name  of  a  third  person.  One  of  them,  under  a  power  from 
that  third  person,  sold  the  vessel,  and  at  the  time  of  the  sale  made  a 
false  representation  of  her  national  character.  The  other  was  sued  by 
the  purchaser,  in  an  action  to  recover  damages  alleged  to  have  been 
sustained  by  reason  of  such  false  representation.  It  was  held  that  he 
was  not  liable.  The  defendant  and  the  seller,  in  that  case,  were  not 
general  partners,  if  indeed  they  were  partners  at  all.  The  seller  was 
not  the  general  agent  of  the  defendant,  nor  had  he  any  authority, 
actual  or  constructive,  to  act  for  him.  It  seems  to  us  therefore  quite 
clear  that  the  decision  in  that  case  is  not  in  conflict  with  ours  in  the 
present. 

Exceptions  overruled. 


HIGGINS  V.  WATERVLIET  TURNPIKE  CO. 
Court  of  Appeals,  New  York,  1871. 

[Reported  46  A'.  Y.  23.] 

On  the  13th  day  of  July,  1866,  plaintiff  was  a  passenger  on  defend- 
ant's horse  car  in  the  city  of  Albany.  He  had  paid  his  fare,  and  was 
forcibly  thrown  from  the  car  by  defendant's  conductor  and  driver 
who  claimed  that  he  was  drunk  and  disorderly.  He  gave  evidence 
tending  to  show  this  was  not  so,  and  the  jury  so  found. 

Andrews,  J.  Upon  the  theory  that  the  act  of  the  conductor,  in 
removing  the  plaintiff  from  the  car,  was  unlawful,  and  was  not  justi- 


502  HIGGINS  V.  WATERVLIET   TURNPIKE   CO.  [CHAP.  IV. 

fied  by  the  circumstances,  the  court  was  requested  by  the  counsel  for 
the  defendant  to  charge  the  jury,  that  the  plaintiff  could  not  recover 
for  any  personal  injuries  occasioned  by  the  assault  of  the  conductor, 
there  being  no  e\'idence  of  authority  from  the  company  to  commit  it. 

Upon  the  other  theory  of  the  case,  that  the  expulsion  was  justified 
by  the  conduct  of  the  plaintiff,  but  that  unnecessary  force,  occasioning 
injury,  was  used  in  ejecting  him,  the  court  charged,  that  the  defend- 
ant was  liable  for  such  injury. 

Exception  was  taken  by  the  defendant  to  the  refusal  of  the  court 
to  charge  as  requested,  and  to  the  charge  made.  These  exceptions 
present  the  questions  made  upon  the  argument. 

The  main  contention  on  the  trial  related  to  the  conduct  of  the  plain- 
tiff immediately  before  his  removal  from  the  car. 

The  evidence  on  the  part  of  the  defendant  tended  to  show  that  he 
was  noisy  and  disorderly ;  that  he  refused  to  obey  the  reasonable  direc- 
tions of  the  conductor,  and  that  his  expulsion  was  justified  by  his  mis- 
conduct. 

This  version  of  the  facts  was  controverted  by  the  plaintiff,  and  we 
cannot  decide,  as  a  question  of  law,  that  the  jury  were  not  justified 
in  finding  with  the  plaintiff  upon  this  issue. 

But  there  is  no  evidence  that  the  act  of  the  conductor  was  prompted 
by  malice,  or  any  wrongful  intention,  or  by  any  motive,  except  to 
discharge  what  he  supposed  to  be  his  duty  under  the  circumstances. 
The  request  to  charge  must  be  regarded  as  ha\dng  been  made  with 
reference  to  this  view  of  the  facts,  otherwise  it  was  irrelevant  and  in- 
applicable to  the  case. 

The  expulsion  of  the  plaintiff,  if  not  justified  by  his  misconduct, 
was  an  unlawful  assault,  and  the  question  arises,  whether  the  defendant 
is  responsible  for  the  injury  occasioned  by  the  unlawful  act  of  its  ser- 
vant, done  under  a  mistake  of  facts,  or  a  mistake  of  judgment  upon 
the  facts,  though  in  the  course  of  the  business  of  his  master. 

This  question  must  be  answered  in  the  affirmative,  in  \'iew  of  the 
nature  of  the  service  in  which  the  conductor  was  engaged,  and  the 
principle  upon  which  the  liability  of  the  master  for  the  acts  of  the 
servant  rests. 

The  conductor  was  put  by  the  defendant  in  charge  of  the  car. 
Passengers  were  bound  to  conform  to  the  reasonable  rules  and  regula- 
tions ofithe  company,  and  to  behave  themselves  in  an  orderly  manner, 
promoting  thereby  the  mutual  interest  of  the  company  and  the  public. 

The  company  had  the  right  to  enforce  order  and  decency,  by  expell- 
ing from  the  car  a  passenger  guilty  of  disorderly  and  indecent  conduct. 

The  defendant  could  only  act  through  agents.  The  appointment 
of  a  conductor  carried  with  it  as  an  incident  authority  to  maintain 
order,  and  to  eject  a  passenger  who  had  forfeited  his  right  to  be  carried 
by  his  misconduct. 

This  authority,  it  is  true,  was  confined  to  the  expulsion  of  persons 


SECT.  I.]  HIGGINS    V.   WATERVLIET   TURNPIKE   CO.  503 

who,  in  fact,  misbehaved  themselves  so  as  to  justify  their  expulsion; 
but  whether,  in  a  given  ease,  the  misconduct  was  such  as  to  justify  an 
expulsion,  must  necessarily  be  determined  at  the  time  of  the  transac- 
tion. 

The  duty  of  deciding  is  cast  upon  the  conductor;  he  represents  the 
defendant;  he  may  misunderstand  or  misjudge  the  facts;  he  may  act 
unwisely  or  imprudently,  or  even  recklessly;  but  the  business  of  pre- 
serving order  and  enforcing  the  regulations  of  the  company  is  com- 
mitted to  him,  and  for  his  acts  in  that  business  the  company  is 
responsible. 

The  master's  liability  for  the  negligence  or  tort  of  his  servant  does 
not  depend  upon  the  existence  of  an  authority  to  do  the  particular  act 
from  which  the  injury  resulted.  In  most  cases  where  the  master  has 
been  held  liable  for  the  negligence  of  his  servant,  not  only  was  there  an 
absence  of  authority  to  commit  the  wrong,  but  it  was  committed  in 
violation  of  the  duty  which  the  servant  owed  to  the  master.  The  prin- 
cipal is  bound,  by  a  contract  made  in  his  name  by  an  agent,  only  when 
the  agent  has  an  actual  or  apparent  authority  to  make  it;  but  the 
liability  of  a  master  for  the  tort  of  his  servant  does  not  depend  primarily 
upon  the  possession  of  an  authority  to  commit  it.  The  question  is  not 
solved  by  comparing  the  act  with  the  authority. 

It  fs  sufficient  to  make  the  master  responsible  civilifcr,  if  the  wrongful 
act  of  the  servant  was  committed  in  the  business  of  the  master,  and 
within  the  scope  of  his  employment,  and  this,  although  the  servant, 
in  doing  it,  departed  from  the  instructions  of  his  master.  This  rule  is 
founded  upon  public  policy  and  convenience.  Every  person  is  bound 
to  use  due  care  in  the  conduct  of  his  business.  If  the  business  is  com- 
mitted to  an  agent  or  servant,  the  obligation  is  not  changed. 

The  omission  of  such  care  by  the  latter  is  the  omission  of  the  princi- 
pal, and  for  injury  resulting  therefrom  to  others,  the  principal  is  justly 
held  liable.  If  he  employs  incompetent  or  untrustworthy  agents  it 
is  his  fault;  and  whether  the  injury  to  third  persons  is  caused  by  the 
negligence  or  positive  misfeasance  of  the  agent,  the  maxim  respondeat 
superior  applies,  provided  only,  that  the  agent  was  acting  at  the  time 
for  the  principal,  and  within  the  scope  of  the  business  intrusted  to 
him. 

It  is  often  stated,  and  with  sufficient  accuracy  for  general  purposes, 
that  a  master  is  not  liable  for  an  assault  committed  by  his  servant. 

It  is  said  by  Lord  Kenyon,  in  the  leading  case  of  McManus  v. 
Crickett  (1  East,  106),  "that  when  a  servant  quits  sight  of  the  object 
for  which  he  was  employed,  and,  without  having  in  view  his  master's 
orders,  pursues  that  which  his  own  malice  suggests,  his  master  will  not 
be  liable  for  such  acts."  If  for  his  own  purposes,  and  not  in  his  master's 
business,  the  servant  commits  an  assault,  the  master  is  not  responsible; 
and  the  statement  that  the  master  is  not  liable  for  the  assault  of  his 
servant  requires  this  qualification. 


604  HIGGINS   V.   W-ATERVLIET   TURNPIKE   CO.  [CHAP.  IV. 

In  the  case  of  Sandford  v.  Eighth  Avenue  Railroad  Company  (23 
N.  Y.  343)  the  action  was  brought  to  recover  damages,  resulting 
from  the  death  of  the  plaintiff's  intestate,  caused  by  his  being  thrown 
from  the  car  of  the  defendant,  by  the  conductor,  when  it  was  in  motion. 
The  deceased  refused  to  pay  his  fare,  and  for  that  reason  the  conductor 
ejected  him.  The  court  held  that  the  conduct  of  the  intestate  justi- 
fied the  conductor  in  expelling  him  from  the  car  in  a  proper  manner, 
but  not  when  the  car  was  in  motion,  and  the  defendant  was  held  liable 
for  the  injury.  Comstock,  Ch.  J.,  says:  "The  case  is,  therefore,  to  be 
stated  thus:  The  defendants  by  their  servant  were  guilty  of  a  personal 
and  intentional  assault  upon  the  intestate.  The  assault,  as  we  think, 
was  not  in  law  justified  by  the  fact,  and  they  are  consequently  without 
a  legal  defense." 

This  case  is  in  point  against  the  defendant  upon  the  question  we 
have  considered,  and  accords  with  the  general  principle,  governing  the 
liability  of  masters  for  the  tortious  acts  of  their  servants.  (Addison 
on  Torts,  23;  Smith  on  Master  and  Servant,  151;  Story  on  Agency 
§452.) 

The  charge  of  the  court  that  the  defendant  was  responsible  for  the 
excessive  force  used  in  ejecting  the  plaintiff  from  the  car  assumed 
that  there  was  lawful  cause  for  his  expulsion.  The  charge,  in  our 
opinion,  was,  under  the  proof  in  the  case,  correct,  and  is  supported  by 
the  considerations,  to  which  we  have  adverted,  in  considering  the  other 
exception. 

We  are  not  called  upon  in  this  case  to  determine  what  the  law  is 
as  to  the  master's  responsibility,  in  a  case  where  a  conductor,  though 
justified  in  using  violence  in  expelling  a  passenger,  wantonly  and  in- 
tentionally used  unnecessary  force  to  accomplish  it,  and  where  the 
justifiable  and  excessive  force  were  parts  of  a  single  act.  In  this  case 
that  hypothesis  is  inadmissible.  The  evidence  does  not  warrant  the 
supposition  that  the  conductor  acted  in  bad  faith  or  wantonly  used 
unnecessary  violence. 

In  Seymour  v.  Greenwood  (7  H.  &  N.  356)  it  was  held  by  the 
Court  of  Exchequer  Chamber,  that  a  master  was  liable  for  an  injury 
caused  by  the  unlawful  and  Aaolent  conduct  of  his  servant  in  the  per- 
formance of  an  act  within  the  course  of  his  employment.  The  case  in 
its  circumstances  was  quite  like  the  case  in  question.  The  guard  of 
the  defendant's  omnibus,  in  removing  a  passenger  whom  he  deemed  to 
be  drunk,  forcibly  dragged  him  out  and  threw  him  on  the  ground, 
whereby  he  was  severely  injured.  The  passenger  brought  an  action 
for  the  injury,  and  the  defendant  claimed  that  he  had  not  authorized, 
and  was  not  liable  for  the  acts  of  the  servant.  Williams,  J.,  in  pro- 
nouncing the  unanimous  opinion  of  the  court,  said:  "We  think  there 
was  evidence  for  the  jury  that  the  guard,  acting  in  the  course  of  his 
service  as  guard  of  the  defendant's  omnibus,  and  in  pursuance  of  that 
employment,  was  guilty  of  excess  and  violence  not  justified  by  the 


SECT.  I.]  BOOMER    V.    WILBUR.  505 

occasion,  or  in  other  words,  misconducted  himself  in  the  course  of  his 
master's  employment,  and,  therefore,  the  master  is  responsible.  It  is 
said,  that  though  it  cannot  be  denied  that  the  defendant  authorized 
his  guard  to  superintend  the  conduct  of  the  omnibuses  generally,  and 
that  such  authority  must  be  taken  to  include  an  authority  to  remove 
any  passenger  who  misconducts  himself,  yet  the  defendant  gave  no 
authority,  to  turn  out  an  inoffensive  passenger,  and  the  plaintiff  was 
one.  But  the  master,  by  giving  the  guard  authority  to  remove  an 
offensive  passenger,  necessarily  gave  him  authority  to  determine 
whether  any  passenger  had  misconducted  himself.  It  is  not  convenient 
for  the  master  personally  to  conduct  the  omnibuses,  and  he  puts  his 
guard  in  his  place;  therefore,  if  the  guard  forms  a  wrong  judgment  the 
master  is  responsible."  (See,  also,  Limpass  v.  London  General  Omnibus 
Company,  1  H.  &  Colt.  526;  Goff  v.  Great  Nor.  R'way  Co.,  30  L.  J. 
Q.  B.  148;  Poulton  v.  London  and  South  Western  R'way  Co.,  2  L.  R. 
2  Q.  B.  534.) 

The  remark  of  one  of  the  judges  in  the  case  of  Hibbard  v.  New  York 
and  Erie  R.  W.  Co.  (15  N.  Y.  467)  may  not,  when  read  in  connection 
with  the  charge  to  which  it  referred,  be  consistent  with  the  views  here 
expressed.  But  the  case  was  decided  upon  another  point,  and  it  is 
not  an  authority  for  the  doctrine  stated  by  the  learned  judge. 

The  judgment  should  be  affirmed. 

All  concur,  but  Peckham,  J.,  not  voting. 

Judgment  affirmed. 


BOOMER  V.  WILBUR. 
Supreme  Judicial  Court  of  Massachusetts,  1900. 

[Reported  176  Mass.  482.] 

Tort,  for  personal  injuries  occasioned  to  the  plaintiff  by  the  fall 
of  brick  and  mortar  from  a  chimney  on  the  house  of  the  defendants  in 
Taunton  upon  the  plaintiff  w^hile  she  was  passing  below  on  the  side- 
walk. At  the  trial  in  the  Superior  Court,  before  Bond,  J.,  the  jury 
returned  a  verdict  for  the  plaintiff;  and  the  defendants  alleged  excep- 
tions, which  appear  in  the  opinion. 

Hammond,  J.  The  court  instructed  the  jury  in  substance  that 
where,  under  a  contract  between  the  owner  of  a  house  and  the  person 
doing  the  work,  work  is  done  upon  the  house,  and  the  owner  retains 
the  right  of  access  to  and  the  control  of  the  premises,  and  such  work  is 
ordinarily  attended  with  danger  to  the  public  unless  proper  precau- 
tions are  taken  to  avoid  it,  the  owner  is  bound  to  the  exercise  of  due 
care  to  see  that  such  precautions  are  taken  for  the  safety  of  the  public; 
and  if  by  reason  of  the  failure  to  take  such  precautions  a  person  law- 
fully on  the  street  and  in  the  exercise  of  due  care  is  injured,  the  owner 


506 


BOOMER   V.   WILBUR. 


[chap.  IV. 


is  answerable  notwithstanding  the  work  is  being  done  under  a  contract 
between  him  and  the  contractor.  Having  stated  this  as  a  general  rule, 
the  court  applied  it  to  this  case  as  follows :  "  If  the  defendants  employed 
a  person  to  repair  the  chimneys  on  their  buildings  adjoining  the  high- 
way under  the  contract,  to  repair  them  for  a  fixed  sum,  and  the  de- 
fendants retained  the  right,  retained  control,  and  the  right  of  access 
to  the  building,  and  such  work  on  the  chimneys  would  ordinarily  be 
attended  with  danger  to  the  public  unless  proper  precautions  to  avoid 
it  were  taken,  the  defendants  were  bound  to  take  proper  precautions, 
or  to  see  that  proper  precautions  were  taken,  for  the  safety  of  the  public; 
and  if  the  plaintiff  was  injured  while  she  was  lawfully  on  the  street, 
adjoining  the  defendants'  premises,  and  in  the  exercise  of  due  care,  by 
reason  of  the  failure  of  the  defendants  to  take  proper  precautions,  or 
by  reason  of  their  failure  to  see  that  proper  precautions  were  taken,  to 
avoid  such  injury,  then  the  defendants  are  liable  for  the  injury." 

We  understand  these  instructions  to  mean  that,  even  if  the  defend- 
ants employed  a  competent,  independent  contractor  to  repair  these 
chimneys,  who  was  to  do  the  work  without  any  dictation  or  super\'ision 
on  the  part  of  the  defendants  over  the  details  of  the  work  or  the  manner 
in  which  it  should  be  done,  the  defendants  would  be  answerable  for 
the  failure  of  the  contractor  to  take  proper  precautions  to  protect 
travelers  upon  the  highway  from  falling  bricks. 

While  the  master  is  liable  for  the  negligence  of  the  servant,  yet 
when  the  person  employed  is  engaged  under  an  entire  contract  for  a 
gross  sum  in  an  independent  operation,  and  is  not  subject  to  the  direc- 
tion and  control  of  his  employer,  the  relation  is  not  regarded  as  that  of 
master  and  servant,  but  as  that  of  contractor  and  contractee;  and  in 
such  case  the  general  rule  is  that  the  negligence  of  the  contracting 
party  cannot  be  charged  upon  him  for  whom  the  work  is  to  be  done; 
and  this  rule  is  applicable  even  where  the  owner  of  the  land  is  the  person 
who  hires  the  contractor,  and  for  whose  benefit  the  work  is  done. 
Milliard  v.  Richardson,  3  Gray,  349.  Forsyth  v.  Hooper,  11  Allen,  419. 
Conners  v.  Hennessey,  112  Mass.  96.  Harding  v.  Boston,  163  Mass.  14, 
18.  There  are,  however,  some  well-known  exceptions  to  the  rule. 
If  the  performance  of  the  work  will  necessarily  bring  wrongful  conse- 
quences to  pass  unless  guarded  against,  and  if  the  contract  cannot  be 
performed  except  under  the  right  of  the  employer  who  retains  the  right 
of  access,  the  law  may  hold  the  employer  answerable  for  negligence  in 
the  performance  of  the  work. 

Woodman  v.  Metropolitan  Railroad,  149  Mass.  335,  was  such  a  case, 
and  the  defendant  was  held  liable  for  the  act  of  an  independent  con- 
tractor hired  by  it  to  dig  up  and  obstruct  the  streets  for  the  purpose 
of  laN-ing  down  the  track,  upon  the  ground  that  the  contract  called  for 
an  obstruction  to  the  highway  which  necessarily  would  be  a  nuisance 
unless  properly  guarded  against. 

The  same  principle  is  further  illustrated  in  Curtis  v.  Kiley,   153 


SECT.  I.]  BOOMER   V.    WILBUR.  507 

Mass.  123,  and  Thompson  v.  Lowell,  Lawrence,  &  Haverhill  Street 
Railway,  170  Mass.  577. 

Again,  if  the  contract  calls  for  the  construction  of  a  nuisance  upon 
the  land  of  the  employer,  he  may  be  held  answerable  for  the  conse- 
quences. In  Gorham  v.  Gross,  125  Mass.  232,  the  defendant  had 
caused  to  be  constructed  by  an  independent  contractor  a  party  wall, 
half  on  the  defendant's  land  and  half  upon  adjoining  land,  and  after 
it  was  completed  and  accepted  it  fell,  causing  damage  to  the  property 
of  the  adjoining  landowner.  There  was  evidence  that  the  fall  of  the 
wall  was  occasioned  by  negligence  in  its  construction.  The  court 
said  that  the  wall  as  constructed  was  a  nuisance  "likely  to  do  mis- 
chief," and  held  the  defendant  answerable  for  the  damage  caused  by 
its  fall. 

To  the  same  effect  is  Cork  v.  Blossom,  162  Mass.  330. 

The  instructions  to  the  jury  allowed  them  to  find  a  verdict  for  the 
plaintiff,  not  upon  the  ground  that  the  chimney  was  a  nuisance 
"likely  to  do  mischief,"  but  upon  the  ground  that  the  work  of  repair 
called  for  by  the  contract  was  necessarily  a  nuisance  within  the  rule 
stated  in  Woodman  v.  Metropolitan  Railroad,  vbi  supra,  and  other 
similar  cases. 

The  work  called  for  was  the  repair  of  chimneys.  At  most  the  brick 
were  to  be  taken  off  for  a  few  feet  and  relaid.  The  work  which  was 
to  be  done  was  not  such  as  would  necessarily  endanger  persons  in 
the  street.  It  did  not  involve  throwing  the  brick  into  the  street,  or 
causing  or  allowing  them  to  fall  so  as  to  endanger  persons  traveling 
therein.  It  is  plain  that  unless  there  was  negligence  in  the  actual 
handling  of  the  brick,  there  could  be  no  injury  to  the  passing  tra^•eler. 
The  case  very  much  resembles  Pye  v.  Faxon,  156  Mass.  471.  The 
plaintiff  in  that  case,  being  the  tenant  of  a  house,  sued  the  owner  of 
an  adjoining  lot  for  trespasses  alleged  to  have  been  committed  upon 
the  plaintiff's  estate  by  the  defendant  while  engaged  in  constructing 
a  large  building  on  his  lot.  It  appeared  from  the  testimony  that  the 
wall  next  to  the  plaintiff's  house  was  not  built  on  the  boundary  line, 
but  was  several  inches  from  it,  and  that  the  staging  used  in  building 
it  was  placed  upon  the  inside;  that  the  brick  when  laid  pressed  out  the 
mortar,  which  was  then  scraped  off  by  the  trowels  of  the  masons,  and 
some  of  it  dropped  upon  the  plaintiff's  land,  upon  her  rear  windows, 
and  upon  the  clothes  hanging  in  her  back  yard.  At  the  trial  the  pre- 
siding judge  instructed  the  jury  that  if  the  dropping  of  the  mortar 
was  from  the  carelessness  of  the  workman  the  defendant  was  not 
liable,  but  if  it  was  something  necessarily  involved  in  the  building  of 
the  wall,  then  he  might  be  liable;  and  these  instructions  were  held  to 
be  correct. 

This  is  not  a  case  where  the  work,  even  if  properly  done,  creates  a 
peril,  unless  guarded  against,  as  in  the  cases  relied  upon  by  the  plain- 
tiff.    The  accident  was  caused  by  the  act  of  the  contractor  in  doing 


508 


DOLL   V.    RIBETTL 


[chap.  IV. 


what  it  was  not  necessary  for  him  to  do,  what  he  was  not  expected 
to  do,  and  what  he  did  not  intend  to  do.  If  it  had  been  necessary  for 
him  to  topple  the  chimney  over  into  the  street,  or  to  remove  the  bricks 
by  letting  them  fall  into  it,  or  the  contract  had  contemplated  such  ac- 
tion, the  instructions  would  not  have  been  objectionable;  but  as  this 
was  not  necessary  or  intended,  the  work  could  not  be  classed  as  work 
which,  if  properly  done,  was  ordinarily  attended  with  danger  to  the 
pubhc. 

The  negligence,  if  any,  was  in  a  mere  detail  of  the  work.  The  con- 
tract did  not  contemplate  such  negligence,  and  the  negligent  party  is 
the  only  one  to  be  held.  The  case  is  clearly  distinguishable  from 
Woodman  v.  Metropohtan  Railroad,  ubi  supra,  and  others  of  a  like 
character,  and  must  be  classed  with  Conners  v.  Hennessey,  ubi  supra, 
and  others  like  it.^ 


DOLL  V.   RIBETTL 
Circuit  Court  of  Appeals,  1913. 

[Reported  203  Fed.  593.] 

Gray,  Circuit  Judge.  The  defendant  in  error  (hereinafter  called 
the  plaintiff)  brought  an  action  of  trespass  in  the  court  below  against 
the  plaintiff  in  error  (hereinafter  called  the  defendant),  to  recover 
damages  for  personal  injuries  received  by  him  while  passing  along 
the  sidewalk  in  front  of  the  building  occupied  by  defendant,  in  the 
city  of  Pittsburgh.    The  statement  of  claim  sets  forth  the  following: 

That  on  the  14th  day  of  February,  1910,  and  prior  thereto,  defend- 
ant was  the  lessee  and  occupant  of  a  certain  building  on  Penn  Avenue, 
one  of  the  principal  streets  in  the  said  city  of  Pittsburgh  and  devoted 
chiefly  to  business  purposes.  The  building  was  six  stories  in  height 
and  stood  flush  with  the  sidewalk  of  Penn  Avenue,  with  windows  of 
the  ordinary  type,  intended  to  be  opened  and  closed  by  sliding  their 
sashes  up  and  down.  Along  the  side  of  the  said  street  next  to  this 
building  was  the  usual  sidewalk,  which,  being  in  a  frequented  part  of 
the  city,  was  in  constant  use  by  pedestrians  at  all  hours  of  the  day. 

That  in  the  said  city  of  Pittsburgh,  it  had  been  a  custom  to  have  the 
windows  of  such  buildings  cleaned  by  persons  standing  outside  of  the 
sash  and  on  the  sills  of  the  windows,  secured  from  falling  by  a  stout 
belt  worn  about  the  waist,  with  a  strap  on  each  side  thereof,  fastened 
to  a  hook  or  other  fixture  set  for  the  purpose  in  the  side  frames  or 

'  The  remainder  of  the  opinion,  in  which  a  question  of  evidence  is  discussed,  is 
omitted. 

See  also  State  v.  General  Stevedoring  Co.,  213  Fed.  51,  70,  72;  Davis  v.  Whit- 
ing, 201  Mass.  92;  Berg  v.  Parsons,  176  N.  Y.  109;  Sanford  v.  Pawtucket  St.  Ry., 
19  R.  I.  537.  — Ed. 


I 


SECT.  I.]  DOLL   V.    RIBETTL  509 

•s 

casing  of  each  window.  That  it  was  also  a  custom  for  persons  en- 
gaged in  the  cleaning  of  windows,  whether  for  themselves  or  under 
contract  for  others,  to  provide  their  workmen  so  engaged  with  belts 
and  straps  and  the  appropriate  hooks  or  fixtures,  for  use  in  connection 
therewith,  for  the  obxious  purpose  of  protecting,  as  well  the  persons 
passing  along  the  sidewalk  as  the  cleaners  themselves,  and  that  win- 
dows on  high  buildings  were  generally  equipped  by  the  owners  or 
occupiers  thereof  with  such  hooks  or  other  fixtures. 

It  is  then  averred  that  the  building  occupied  by  the  defendant  was 
not  and  never  had  been  provided  with  such  hooks,  or  with  any  other 
fit  or  appropriate  fixtures,  for  the  purpose  stated. 

That  at  sometime  before  said  14th  day  of  February,  1910,  defend- 
ant entered  into  a  contract  with  one  Hearn,  for  cleaning  the  windows 
of  the  said  building  at  stated  intervals.  That  on  that  day,  the  win- 
dows opening  upon  said  avenue  were  being  cleaned  under  said  contract 
by  the  agents  and  servants  of  Hearn.  H.  C.  Burrell,  one  of  said 
agents  or  servants,  while  so  engaged,  was  standing  on  the  outer  sills 
of  the  windows  while  doing  his  work,  without  using  a  safety  belt  or 
other  adequate  safety  appliance,  as  theretofore  referred  to,  to  prevent 
him  from  falling. 

The  defendant,  long  prior  to  said  14th  day  of  February,  1910, 
"knew,  or  by  the  exercise  of  reasonable  care  should  have  known,  that 
the  windows  of  the  building  were  not  equipped  with  the  customary 
hooks  or  other  appropriate  fixtures  hereinbefore  referred  to;  and 
knew,  or  by  the  exercise  of  reasonable  care  should  have  known,  that 
some  of  the  windows  giving  upon  Penn  Avenue  were  so  defective 
.  .  .  that  they  could  not  be  cleaned  on  the  outside,  except  by  persons 
standing  on  the  outer  sills  thereof." 

That  on  the  day  last  aforesaid,  while  plaintiff  was  lawfully  walking 
upon  the  sidewalk  on  Penn  Avenue,  and  passing  the  said  building,  the 
said  Burrell,  then  engaged  in  so  cleaning  a  window  on  the  fourth 
(story  front  thereof,  above  said  sidewalk,  and  without  the  knowledge 
of  the  plaintiff,  accidentally  lost  his  balance  and  fell  upon  plaintiff, 
thereby  injuring  him,  as  thereinafter  set  forth. 

The  plaintiff  was  a  physician  and  surgeon,  practicing  in  the  city  of 
Pittsburgh,  and  was  severely  and  permanently  injured  by  this  acci- 
dent. 

The  facts  alleged  in  the  statement  of  claim  are  for  the  most  part 
undisputed,  and  there  was  e\ndence  tending  to  support  all  of  the 
allegations  of  fact  upon  which  were  based  the  charge  of  negligence  of 
the  defendant.  The  case  was  submitted  to  the  jury,  with  a  charge  by 
the  court,  and  to  the  judgment  upon  the  verdict  in  favor  of  the  plain- 
tiff this  writ  of  error  is  taken. 

The  only  question  raised  by  the  assignments  of  error  (apart  from 
the  one  founded  on  the  refusal  of  the  court  to  direct  a  verdict  for  the 
defendant),  is  as  to  the  legal  responsibility  of  the  defendant,  as  occu- 


510 


DOLL   V.    RIBETTI. 


[chap.  IV. 


pant  of  the  building,  for  such  neglect  or  default  of  an  independent  con- 
tractor undertaking  to  clean  defendant's  windows,  as  made  the  work 
unreasonably  dangerous  to  those  of  the  public  lawfully  using  the  side- 
walk beneath.  It  was  insisted  by  the  defendant  in  the  court  below, 
as  here,  that  the  window  cleaning  contractor,  being  a  man  skilled  and 
experienced  in  that  line  of  work,  had  taken  the  responsibility  for  the 
conduct  thereof  out  of  the  hands  of  the  defendant  into  his  own,  and 
that  he  alone,  and  not  the  defendant,  was  liable  for  any  negligence  in 
the  conduct  of  that  work. 

In  this  case,  however,  we  agree  with  the  court  below,  that  the  fact 
that  the  work  was  in  the  hands  of  an  independent  contractor  cannot 
be  interposed  as  a  defense  to  the  liability  with  which  the  defendant  is 
sought  to  be  charged. 

The  defendant  was  a  lessee  and  occupier  of  the  building  in  ques-. 
tion.  As  such,  he  was  in  control  thereof,  and  the  law  imposes  upon 
such  occupier  a  very  positive  duty  to  those  using  the  highway  upon 
which  the  building  abuts,  to  use  the  care  requisite,  according  to  the 
circumstances,  to  guard  them  against  injury  resulting  from  the  condi- 
tion of  the  premises,  or  from  what  is  being  done  in  or  about  the  same, 
by  the  direction  or  permission,  or  for  the  convenience  and  benefit,  of 
the  occupier.  In  cases  like  the  present,  the  exigence  of  such  duty  is 
not  affected  by  the  fact  that  the  faulty  conditions,  from  which  re- 
sulted the  damage  complained  of,  were  due  to  the  negligence  of  an 
independent  contractor  in  operating  under  the  contract.  This  duty  is 
peculiar  to  the  situation,  and  is  as  just  as  it  is  severe.  It  places  the 
responsibility  for  what  happens  on  such  premises  on  the  occupier 
who  is  in  control  of  the  same,  and  protects  those  of  the  public  who, 
in  the  use  of  the  highway  along  such  premises,  lawfully  come  within 
dangers  originating  thereon.  Of  such  dangers,  the  casual  user  of  a 
sidewalk  is  generally  unwarned,  and  the  matters  from  which  they 
arise  are  specially  within  the  knowledge,  or  should  be  within  the 
knowledge,  of  the  occupier. 

What  is  said  by  Sir  Frederick  Pollock  in  his  philosophical  work  on 
Torts,  in  relation  to  the  duties  imposed  by  law  on  the  occupiers  of 
buildings,  applies  as  well  to  the  duty  of  such  occupiers  to  those  who 
are  in  lawful  use  of  the  adjacent  highway,  as  to  the  duty  to  those  who 
resort  to  the  premises  in  the  course  of  business  in  which  the  occupier 
is  concerned  or  interested: 

"  The  duty  is  founded  not  on  ownership  but  on  possession,  in  other 
words,  on  the  structure  being  maintained  under  the  control  and  for 
the  purposes  of  the  person  held  answerable.  It  goes  beyond  the  common 
doctrine  of  responsibility  for  servants,  for  the  occupier  cannot  dis- 
charge himself  by  employing  an  independent  contractor  for  the  main- 
tenance and  repair  of  the  structure,  however  careful  he  may  be  in  the 
choice  of  that  contractor.  Thus  the  duty  is  described  as  being  imper- 
sonal rather  than  personal.    Personal  diligence  on  the  part  of  the  occu- 


SECT.  I.J  DOLL   V.  KIBETTI.  511 

pier  and  his  servants  is  immaterial.  The  structure  has  to  be  in  a  rea- 
sonably safe  condition,  so  far  as  the  exercise  of  reasonable  care  and  skill 
can  make  it  so.  To  that  extent  there  is  a  limited  duty  of  insurance, 
as  one  may  call  it,  though  not  a  strict  duty  of  insurance  such  as  exists 
in  the  classes  of  cases  governed  by  Rylands  v.  Fletcher  [L.  R.  .3  H.  L. 
330,  37  L.  J.  Ex.  161]." 

Where  the  thing  committed  to  an  independent  contractor  to  do  for 
the  occupier,  on  or  about  his  premises,  is  of  itself  inherently  danger- 
ous, such  contractor  is  the  mere  instrument  or  agent  of  the  occupier, 
so  far  as  concerns  the  responsibility  to  those  lawfully  coming  within 
such  danger.  In  the  present  case,  the  responsibility  of  the  defendant, 
as  occupier,  is  the  same  as  if  the  window  cleaner,  who  fell  from  the 
window  sill,  had  been  the  ordinary  servant  of  the  defendant.  He 
was  bound  in  either  case  to  use  the  care  requisite  to  see  that  the  work 
of  cleaning  his  windows  was  not  made  unreasonably  dangerous  to  one 
passing  on  the  sidewalk.  This,  in  effect,  is  the  principle  announced 
by  the  Supreme  Court  in  the  case  of  Water  Co.  v.  Ware,  16  Wall.  566, 
21  L.  Ed.  485: 

"  When  a  person  is  engaged  in  a  work,  in  the  ordinary  doing  of  which 
a  nuisance  occurs,  the  person  is  liable  for  any  injury  that  may  result  to 
third  parties  from  carelessness  or  negligence,  though  the  work  may  be 
done  by  a  contractor." 

The  duty  imposed  by  law  on  the  occupier  is  an  absolute  duty,  which 
he  cannot  shift.  It  is  by  reason  of  his  control  thereof,  that  the  occupier 
of  premises  on  a  public  street  or  highway  owes,  as  has  been  said,  a 
duty  of  quasi  insurance  to  those  using  the  highway  against  injury 
resulting  from  the  condition  of  the  premises,  or  from  what  is  being 
done  on  or  about  the  same  for  the  convenience  and  benefit  of  the 
occupier.  So  a  general  contractor  having  possession  and  control, 
for  the  purpose  of  erecting  buildings  for  the  owner  of  the 
premises,  cannot  relieve  himself  from  liability  for  a  dangerous  situ- 
ation, though  created  by  an  independent  subcontractor,  as  recently 
decided  by  this  court  in  the  case  of  Wilson  v.  Hibbert,  194  Fed.  838, 
114  C.  C.  A.  542. 

There  is  little  or  no  difference  in  English  or  American  authorities 
on  this  point,  and  it  is  unnecessary  to  cite  the  long  list  of  such  au- 
thorities which  have  been  brought  to  our  attention  by  the  abihty  and 
industry  of  the  learned  counsel  of  the  defendant  in  error.  This  prin- 
ciple was  given  a  wider  application  by  the  Supreme  Court  in  the  case 
of  Chicago  v.  Robbins,  2  Black,  418,  17  L.  Ed.  298.  In  that  case, 
the  defendant,  owning  a  lot  in  Chicago,  contracted  in  writing  with 
another  to  erect  a  building  thereon,  which  included  the  excavation  of 
an  area  in  the  sidewalk  next  to  and  adjoining  it,  so  as  to  furnish  Hght 
and  air  to  the  basement.  After  the  excavation  had  been  made,  it  was 
left  unguarded  by  the  contractor,  and  the  plaintiff  was  injured  by 
falling  therein.    On  the  ground  that  the  contractor  was  doing  the  thing 


512  DOLL   V.  RIBETTL  [CHAP.  IV. 

which  he  was  employed  to  do,  which  was  inherently  dangerous  to  the 
users  of  the  sidewalk,  the  court  held  the  owner  who  had  employed  the 
contractor  liable  for  the  injury  occasioned  by  the  neglect  to  surround 
the  excavation  with  sufficient  lights  and  guards.  Speaking  of  the 
owner  and  employer,  the  court  said: 

"He  cannot  escape  liability  by  letting  work  out  like  this  to  a  con- 
tractor and  shift  responsibility  on  him  if  an  accident  occurs.  He  can- 
not even  refrain  from  directing  his  contractor  in  the  execution  of  the 
work,  so  as  to  avoid  making  the  nuisance.  A  hole  cannot  be  dug  in 
the  sidewalk  of  a  large  city  and  left  without  guards  and  light  at 
night,  without  great  danger  to  life  and  limb,  and  he  who  orders 
it  dug,  and  makes  no  provision  for  its  safety,  is  chargeable,  if  injury 
is  suffered." 

This  wider  and  more  inclusive  rule  is  variously  stated  in  a  multi- 
tude of  cases,  both  English  and  American,  and  is  very  clearly 
stated  by  the  Supreme  Court  of  Ohio  in  Covington  &y  Cincinnati 
Bridge  Co.  v.  Steinbrock,  61  Ohio  St.  223,  55  N.  E.  619,  76  Am.  St. 
Rep.  375: 

"The  weight  of  reason  and  authority  is  to  the  effect  that  where  a 
party  is  under  a  duty  to  the  public  or  third  person  to  see  that  work 
he  is  about  to  do  or  have  done  is  carefully  performed,  so  as  to  avoid 
injury  to  others,  he  cannot,  by  letting  it  to  a  contractor,  avoid  his 
liability  in  case  it  is  negligently  done  to  the  injury  of  another.  .  .  . 
It  is  the  danger  to  others,  incident  to  the  performance  of  the  work  let 
to  contract,  that  raises  the  duty  and  which  the  employer  cannot  shift 
from  himself  to  another  so  as  to  avoid  liability,  should  injury  result  to 
another  from  negligence  in  doing  the  work." 

In  such  cases,  the  principal  makes  the  contractor  an  agent  or  serv- 
ant, for  whose  negligence  he  is  responsible.  So  in  the  English  case 
of  Bower  v.  Peate,  1  Q.  B.  Div.  321.  Here  the  plaintiff  and  defendant 
occupied  adjoining  houses.  Defendant,  ha\dng  decided  to  rebuild  his 
house  and  in  doing  so  to  carry  his  foundations  lower  than  the  founda- 
tions of  the  plaintift"s  adjoining  house,  entered  into  a  contract  with 
a  builder  to  do  all  the  necessary  work.  The  written  contract  contained 
a  clause  by  which  the  contractor  agreed  to  take  upon  himself  the  risk 
and  responsibility  of  shoring  and  supporting,  as  far  as  necessary,  the 
adjoining  building  affected  by  this  alteration,  during  the  progress  of 
the  work.  Cockburn,  C.  J.,  delivering  the  opinion  of  the  Queen's 
Bench  Division  of  the  High  Court  of  Justice,  says : 

"  The  answer  to  defendant's  contention  may,  however,  as  it  appears 
to  us,  be  placed  on  a  broader  ground,  namely,  that  a  man  who  orders 
work  to  be  executed,  from  which,  in  the  natural  course  of  things,  in- 
jurious consequences  to  his  neighlior  must  be  expected  to  arise,  unless 
means  are  adopted  by  which  such  consequences  may  be  prevented,  is 
bound  to  see  to  the  doing  of  that  which  is  necessary  to  prevent  the  mis- 
chief, and  cannot  relieve  himself  of  his  responsibility  by  employing 


II 


SECT.  I.]  DOLL   V.  EIBETTI.  513 

some  one  else  —  whether  it  be  the  contractor  employed  to  do  the  work, 
from  which  the  danger  arises,  or  some  independent  person  —  to  do 
what  is  necessary  to  prevent  the  act  he  has  ordered  to  be  done  from 
becoming  wrongful." 

See,  also,  Tarry  v.  Ashton,  1  Q.  B.  Div.  314. 

If  the  work  to  be  done  by  the  contractor  for  the  occupier  is  neces- 
sarily attended  with  some  danger,  even  when  performed  without 
negligence  by  the  contractor,  such  occupier  would  be  responsible  for 
having  neglected  to  guard  against  such  inevitable  danger  should  an  in- 
nocent third  person  suffer  injury  therefrom.  Thus,  in  the  case  of  Jager 
V.  Adams,  123  Mass.  26,  25  Am.  Rep.  7,  where  one  was  building  a 
brick  wall  abutting  on  the  highway,  and  plaintiff  was  injured  by  a 
falling  brick,  though  the  servant  who  dropped  it  was  not  negligent,  the 
court  said: 

"It  is  a  matter  of  common  knowledge  and  experience  that  when 
men  are  breaking  and  handling  bricks  in  the  construction  of  such  a 
wall,  some  of  the  material  may  fall,  although  the  workmen  are  in  the 
exercise  of  ordinary  care.  The  immediate  cause  of  the  e\\\  in  such  case 
may  indeed  be  accidental,  but  it  is  an  accident  which  the  builder  of 
the  wall,  in  view  of  the  danger  to  life  and  limb,  may  be  bound  to  con- 
template and  provide  against  by  safeguards  or  barriers,  so  that  the 
traveler  may  not  be  exposed  to  injury." 

See,  also,  Shipley  v.  Fifty  Associates,  101  Mass.  251,  3  Am.  Rep. 
346. 

We  have  not  overlooked  the  fact  that  the  falling  body  by  which 
the  plaintiff  was  injured  was  a  living  man,  capable  of  exercising  his 
own  will  and  capable,  therefore,  of  causing  or  contributing  to  his  fall 
by  his  own  negligence.  But  we  have  not  been  able  to  discover  in  these 
facts  a  sufficient  reason  for  relieving  the  occupier  of  the  premises  from 
liability.  As  we  have  tried  to  show,  the  man  whose  fall  did  the  harm 
in  question  must  be  regarded  as  the  servant  of  the  occupier,  although 
an  independent  contractor  did  intervene,  and  the  occupier  cannot  es- 
cape liability  for  the  negligence  of  his  servant  and  agent,  even  under 
such  unusual  circumstances  as  these.  On  principle,  the  servant's  con- 
trol over  his  own  will  and  his  own  movements  does  not  seem  to  make 
any  difference.  The  occupier  was  the  master,  and  if  in  that  charac- 
ter he  had  ordered  the  servant  to  assume  the  dangerous  position,  and 
the  fall  had  taken  place  while  the  servant  was  obeying  the  order,  the 
master  would  have  been  as  completely  liable  as  if  the  falling  body  had 
been  an  inanimate  object  carelessly  placed  on  the  window  ledge. 
And  we  think  the  same  result  must  follow,  although  the  master  know- 
ingly permits  (but  does  not  directly  order)  his  servant  to  assume  a 
position  so  dangerous  that  the  servant's  lack  of  care  for  his  own  safety 
may  be  followed  by  injury  to  an  innocent  passer-by.  This  is  little 
more  than  a  restatement  of  the  proposition,  that  he  who,  either  him- 
self or  by  an  agent,  does  an  act  inherently  dangerous  to  the  innocent 


514  DOLL   V.    RIBETTI.  [CHAP.  IV. 

users  of  a  highway  —  whether  the  order  be  given  directly  or  through 
the  mouth  of  an  independent  contractor  —  is  charged  with  a  high  de- 
gree of  responsibihty,  nearly  akin  to  the  responsibility  of  an  insurer. 

The  court,  having  correctly  instructed  the  jury  that  the  employ- 
ment by  defendant  of  an  independent  contractor  to  clean  the  windows 
of  his  building  was  not  available  as  a  defense,  it  only  remained  to 
submit  to  the  jury,  not  whether  this  work  was  dangerous,  but  whether 
defendant  had  used  reasonable  care  in  guarding  against  the  dangers 
that  were  naturally  incident  thereto.  It  is  a  matter  of  common 
knowledge  that  work  done  on  the  outside  of  a  building,  such  as  in 
this  case,  or  in  the  case  of  work  done  on  scaffolding,  is  attended  with 
dangers  to  those  using  the  sidewalk  beneath.  Such  accidents,  whether 
negligent  or  non-negligent,  must  be  guarded  against,  either  by  means 
calculated  to  prevent  the  falling  of  bodies,  or  by  such  barriers  or  warn- 
ing notices  as  would  prevent  the  use  of  the  sidewalk  within  the  area 
of  danger,  the  only  question  to  be  determined  being  whether  defendant 
has  used  reasonable  care  to  safeguard  the  situation. 

The  charge  of  the  court  below  was  in  another  respect  more  favor- 
able to  the  defendant  than  it  had  a  right  to  demand.  The  jury  were 
repeatedly  instructed  that  the  burden  rested  upon  the  plaintiff  to  show, 
first,  that  this  work  was  dangerous  work,  and  second,  that  the  defend- 
ant was  guilty  of  negligence  in  not  acting  as  a  person  of  ordinary 
prudence  should  act,  in  order  to  guard  against  its  dangers.  The  rule 
of  evidence  applicable  in  such  cases  is  thus  stated  by  Sir  Frederick 
Pollock: 

"  Where  damage  is  done  by  the  falling  of  objects  into  a  highway  from 
a  building,  the  modern  rule  is  that  the  accident,  in  the  absence  of  ex- 
planation, is  of  itself  evidence  of  negligence.  In  other  words,  the  bur- 
den of  proof  is  on  the  occupier  of  the  building.  If  he  cannot  show  that 
the  accident  was  due  to  some  cause  consistent  with  the  due  repair  and 
careful  management  of  the  structure,  he  is  liable." 

In  other  words,  the  maxim  res  ipsa  loquitur  is  applicable  to  cases  like 
the  present.  This  rule  rests  upon  both  reason  and  authority.  It 
is  the  dictate  of  a  wise  public  policy,  that  of  protecting  the  right  of 
those  lawfully  using  the  public  highways,  to  be  unmenaced  by  dangers 
resulting  from  the  condition  of  adjoining  premises,  or  from  what  is 
being  done  for,  or  by  permission  of,  the  occupiers,  on  or  about  the 
same.  These  things,  though  known  to  such  occupiers,  cannot  be  known 
or  appreciated  by  the  users  of  the  highways.  Bodies  are  not  expected 
to  fall  from  the  windows  of  buildings,  upon  the  adjoining  highways. 
Such  happenings  are  not  consistent  with  the  usual  and  orderly  con- 
duct and  menage  of  such  buildings. 

The  leading  cases   of   Byrne  r.  Boadle,  2   H.  &   C.  722,   and  of 

Kearney  v.  London,  Brighton  &  South  Coast  Railway  Co.,  6  Q.  B. 

^Cas.  759,  have  been  followed  by  many  other  cases,  both  in  England 

and  in  this  country,  and  the  applicability  of  the  rule  of  evidence  em- 


SECT.  II.]  LYONS  V.   MERRICK.  515 

bodied  in  the  maxim  res  ipsa  loquitur,  to  objects  falling  from  buildings 
into  a  highway,  is  well  established. 

The  jury,  however,  having  found  both  the  questions  thus  submitted 
in  favor  of  the  plaintiff,  the  assignments  of  error,  as  to  the  charge  of 
the  court  in  regard  to  the  defense  of  an  independent  contractor,  are 
overruled,  and  the  judgment  below  is  hereby  affirmed.^ 


SECTION    II. 

Liability  for  Animals. 

LYONS  V.  MERRICK. 
Supreme  Judical  Court  of  Massachusetts,  1870. 

[Reported  105  Mass.  71.] 

At  the  trial  in  the  Superior  Court,  before  Dcvens,  J.,  the  plaintiff 
offered  evidence  tending  to  show  that  the  defendant's  mule,  and  the 
horse  of  Fuller,  which  the  defendant  was  pasturing  for  hire,  came 
into  the  plaintiff's  pasture  and  there  so  chased,  kicked,  and  injured  the 
plaintiff's  mare  that  she  died;  that  the  mule  was  accustomed,  before 
the  time  of  this  injury,  to  jump  and  escape  from  the  lots  of  the  defend- 
ant; that  the  defendant  knew  of  this  habit  of  the  mule;  and  that  the 
lot  where  the  defendant  placed  the  mule  and  horse  was  insufficiently 
and  negligently  fenced. 

It  appeared  that  the  lot  of  the  defendant,  from  which  the  mule  and 
horse  escaped,  was  situated  about  half  a  mile  from  the  plaintiff's  pas- 
ture; that  next  to  the  defendant's  lot  was  the  lot  of  Peter  Glover,  next 
to\  Glover's  lot  was  a  lot  of  Simon  Bloomer,  and  next  to  Bloomer's  lot 
was  the  pasture  of  the  plaintiff. 

The  defendant  offered  e\'idence  tending  to  show  that  "  the  partition 
fence  between  his  lot  and  Glover's  had  not  been  legally  divided,  but 
that  for  the  purpose  of  repairs  one  portion  had  always  been  repaired 
by  himself  and  those  under  whom  he  claimed,  and  the  other  by 
Glover  and  those  under  whom  he  claimed;  that  the  animals  escaped 
through  that  portion  of  the  fence  which  Glover  was  accustomed  to 
keep  in  repair,  and  that  it  was  not  a  lawful  fence ;  that  between  Glover's 
lot  and  Bloomer's  lot  there  was  no  fence  at  all,  and  between  Bloomer's 
lot  and  the  plaintiff's  pasture  was  not  a  lawful  fence;  and  that  after 
the  animals  escaped  into    Glover's   lot,   they    then    passed    through 

1  See,  also,  Chicago  v.  Robbins,  2  Black,  418;  Water  Co.  r.  Ware,  16  Wall,  567, 
576;  Wetherbee  v.  Partridge,  175  Mass.  185;  Storrs  v.  Utica,  17  N.  Y.  104;  Bower  u. 
Peate,  1  Q.  B.  D.  321.  — Ed. 


516  LYONS    V.    MERRICK.  [CHAP.  IV. 

Bloomer's  lot  and  over  the  insufficient  fence  next  the  plaintiff's  pasture 
into  the  pasture."  ^ 

Colt,  J.  The  declaration  charges  the  defendant  with  negligence  in 
turning  his  mule,  and  a  horse  which  he  was  keeping  for  hire,  into  a 
pasture  insufficiently  fenced.  The  instructions  given  at  the  trial,  as  to 
what  would  be  negligence  in  this  regard,  were  full  and  accurate.  The 
defendant  cannot  avoid  the  liability  by  showing  that  the  obligation 
to  maintain  that  part  of  the  fence  through  which  the  animals  escaped 
was  upon  a  third  party,  who  owned  the  adjoining  land  over  which  the 
animals  passed  on  their  way  to  the  plaintiff's  pasture.  The  rights  and 
obligations  existing  between  adjoining  owners  in  respect  to  fencing, 
whether  regulated  by  statute,  or  by  agreement,  do  not  affect  the  right 
to  recover  in  this  case.  At  common  law,  the  tenant  must  keep  his 
cattle  upon  his  own  land  at  his  peril.  The  defendant,  as  against  the 
plaintiff,  is  subject  to  this  common  law  duty,  the  parties  are  not  ad- 
joining owners,  and  their  obligations  are  not  affected  by  statute  in  this 
respect.  It  was  negligence  to  turn  the  animals  into  a  lot  insecurely 
fenced,  for  which  the  defendant  is  responsible  if  any  injury  ensued, 
without  regard  to  the  obligations  existing  between  the  defendant  and 
the  tenant  of  the  next  lot.  It  may  be  that  the  defendant  would  not  be 
liable  in  trespass  for  their  escape  into  that  lot,  if  the  tenant  of  it  was  in 
fault,  for  no  one  can  recover  for  an  injury  to  which  his  own  negligence 
contributed.  And  yet  as  to  the  plaintiff,  the  animals  while  in  that 
lot  were  unlawfully  there,  and  no  obligation  rested  upon  him  to 
fence  his  lot  against  them.  It  was  therefore  immaterial  what  the 
condition  of  the  fence  around  the  plaintiff's  pasture  was.  Rust  v. 
Low,  6  Mass.  90.  Eames  v.  Salem  &  Lowell  Railroad  Co.,  98  Mass. 
560.  The  instructions  asked  for  on  this  part  of  the  case  could  not  be 
properly  given. 

The  other  instructions  asked  were  also  properly  refused.  The  owner 
of  an  animal,  or  the  person  who  in  his  place  and  by  contract  with  him 
has  the  exclusive  custody  and  control  of  it,  is  liable  for  injuries  which 
he  negligently  suffers  it  to  commit.  The  liability  stands  wholly  upon 
the  ground  of  actual  or  presumed  negligence.  If  the  injury  is  commit- 
ted while  trespassing  upon  the  lands  of  others,  the  owner  is  charge- 
able, and  is  responsible  for  the  damage  which  directly  results  there- 
from as  the]  natural  and  probable  consequence.  In  other  cases  he 
may  be  liable,  although  there  is  no  trespass,  and  the  animal  is  rightfully 
in  the  place  where  the  mischief  is  done;  as  where  the  injury  comes  from 
the  vicious  disposition  or  mischievous  habits  of  the  animal,  of  which 
the  owner  had  previous  actual  notice;  or  where,  without  actual  notice, 
the  disposition  and  habits  are  so  universal  among  the  species  that 
notice  is  presumed,  as  in  the  case  of  wild  and  savage  beasts.  The 
owner  or  keeper  of  such  animals,  with  actual  or  implied  notice  of  their 
character,  is  bound  at  his  peril  to  keep  them,  at  all  times  and  in  all 
'  Pleadings,  requests  to  charge,  and  arguments  are  omitted.  —  Ed. 


I 


SECT.  II.]  VREDENBURG   V.    BEHAN.  617 

places,  properly  secured;  and  is  responsible  to  any  one  who  without 
fault  on  his  own  part  is  injured  by  them. 

The  rulings  which  were  asked  on  this  point  proceed  upon  the  ground 
that  the  defendant  could  not  be  held  liable,  and  the  action  could  not 
be  maintained  at  all,  without  proof  of  knowledge  on  his  part  that  these 
animals  were  vicious  and  accustomed  to  do  mischief.  But,  on  the 
part  of  the  defendant,  there  was  negligence  enough  to  support  the 
action,  in  placing  the  animals  where  they  would  be  likely  to  escape 
and  become  trespassers  upon  the  plaintiff;  and  upon  the  question  of 
the  right  to  maintain  the  action  the  defendant's  knowledge  or  want  of 
knowledge  of  their  character  was  immaterial.  We  are  not  required  to 
consider  what  effect,  if  any,  it  would  have  upon  the  amount  of  the 
damages  for  which  he  would  be  liable. 

The  form  of  the  plaintiff's  declaration  does  not  require  him  to  prove 
the  alleged  viciousness  and  the  defendant's  knowledge,  because  with- 
out these  allegations  there  is  enough  stated  to  charge  the  defendant 
with  negligence,  and  the  plaintiff  was  bound  to  prove  no  more  than  was 
necessary  to  make  out  his  case.  This  is  the  rule  in  actions  of  tort, 
where  the  plaintiff  is  not  obliged  to  prove  allegations  not  essentially 
descriptive  or  so  connected  with  material  averments  that  they  cannot 
be  separated.  McDonald  v.  Snelling,  14  Allen,  290.  Barnes  v.  Chapin, 
4  Allen,  444.  Decker  v.  Gammon,  44  Maine,  322.  Shearman  &  Red- 
field  on  Negligence,  §  185. 

As  to  the  defendant's  liability  for  the  damage  done  by  the  horse 
which  he  was  keeping  for  hire,  the  rule  laid  down  at  the  trial  was 
certainly  sufficiently  favorable  to  him.  Barnum  v.  Vandusen,  16 
Coim.  200. 

Exceptions  overruled. 


\  VREDENBURG  v.  BEHAN. 

Supreme  Court  of  Louisiana,  1881. 

[Reported  33  La.  Ann.  627.] 
ToDD,   J.l   .    .    . 

1.  The  facts  out  of  which  this  controversy  grew  are,  substantially, 
as  follows: 

The  defendants  were  members  of  an  association  or  society  known  as 
the  Crescent  City  Rifle  Club. 

In  July,  1877,  the  club,  wishing  to  send  some  of  its  members  north 
to  participate  in  an  inter-State  rifle  shooting  match,  about  to  take 
place  in  New  York,  for  the  purpose  of  providing  means  therefor,  con- 
cluded to  give  an  entertainment  at  Milneburg,  on  Lake  Pontchartrain. 
The  Continental  Guards,  a  military  company  of  the  city  of  New  Orleans, 

'  Part  of  the  opinion  is  omitted.  —  Ed. 


518  VREDENBURG   V.   BEHAN.  [CHAP.  IV. 

to  further  the  object  in  view,  and  as  a  contribution  to  the  proposed  en- 
tertainment, offered  to  the  Club  a  bear,  owned  by  the  officers  of  the 
company,  "as  a  prize  to  be  shot  for"  on  the  occasion.  The  offer  was 
accepted,  and  a  member  of  the  club  was  instructed  to  make  the  neces- 
sary arrangements  for  shooting  for  the  bear. 

The  entertainment  came  off  on  the  3d  of  August,  1877,  the  bear 
was  brought  on  the  ground  and  was  offered  as  a  prize,  as  previously 
arranged.  He  was  won  by  William  Arms,  a  member  of  the  club,  and 
one  of  the  defendants.  Arms  put  him  up  again  to  be  shot  for,  and  this 
time  he  was  won  by  another  person,  who,  however,  declined  to  claim 
the  prize.  Arms  had  the  bear  taken  to  the  grounds  of  the  club,  and 
caused  him  to  be  chained  to  the  corner  of  the  club-house;  and  there 
the  bear  remained  until  the  30th  of  October,  1877.  These  grounds 
had  been  leased  by  the  club,  and  the  house  erected  by  it  belonged,  by 
the  terms  of  their  charter,  to  the  members  of  the  club. 

The  pasture  of  Mr.  Vredenburg,  who  was  engaged  in  a  dairy  busi- 
ness, adjoined  the  grounds  of  the  rifle  club,  and  he  and  his  employees 
in  going  to  and  from  the  pasture  passed  through  these  club  grounds. 
On  the  evening  of  the  30th  of  October,  Mr.  Vredenburg  went  to  the 
pasture  after  his  cows.  A  short  time  thereafter,  as  he  was  returning 
from  the  pasture,  he  was  attacked  by  the  bear,  which  in  the  meantime 
had  gotten  loose,  and  received  the  injuries  of  which  he  subsequently 
died.  Tetanus  or  locked-jaw  supervened,  attended  with  great  suffering, 
and  his  death  occurred  on  the  27th  November,  twenty-one  days  after 
the  wounds  were  inflicted.  It  is  shown  that  just  after  Mr.  Vredenburg 
passed  through  the  club  grounds  on  his  way  to  the  pasture,  a  boy, 
who  was  employed  by  him  to  assist  in  driving  his  cattle,  and  in  his 
dairy  business  generally,  came  into  the  club  grounds  accompanied  by 
a  small  dog,  and  teased  the  bear  by  setting  the  dog  on  him;  and  it 
was  whilst  the  animal  was  thus  worried,  that  he  twisted  his  collar  off, 
and  ran  after  the  dog  and  finally  encountered  IMr.  Vredenburg;  and 
just  as  he  attacked  him  he  was  whipped  by  his  keeper  in  an  effort  to 
prevent  the  attack,  which  only  served  to  enrage  him  the  more. 

This  last-mentioned  fact,  touching  the  acts  of  the  hired  boy  in  caus- 
ing the  bear  to  break  loose,  is  charged  to  have  remotely  caused  or  con- 
tributed to  the  death  of  the  deceased,  and  is  relied  on  by  the  defendants 
as  a  ground  to  reHeve  them  of  responsibility  for  the  result;  and  though 
not  strictly  in  the  order  of  pleading  adopted  by  their  counsel,  it  is  well 
to  consider  it  at  once,  and  eliminate  it  from  the  case. 

2.  The  doctrine  of  contributory  negligence  has  never  been  carried 
to  the  extent  contended  for  in  this  instance.  Had  the  acts  referred  to 
been  committed  by  Vredenburg  himself,  there  would  be  great  force  in 
the  plea  urged;  and  the  principle  invoked  would  be  strictly  applicable. 
It  is  for  his  own  acts,  however,  in  this  respect,  that  a  man  is  bound  and 
for  which  he  must  suffer;  but  he  cannot  be  held  equally  answerable  for 
the  acts,  faults,  and  negligence  of  his  employee. 


SECT.  II.]  VREDENBURG   V.    BEHAN.  519 

A 

The  master  or  employer  is  only  answerable  for  the  faults  of  his  em- 
ployee when  committed  "in  the  exercise  of  the  functions  of  his  em- 
ployment, and  when  he  might  have  prevented  the  act  and  not  done  it." 
C.  C.  2320. 

In  this  instance,  the  boy's  act  was  not  in  the  remotest  degree  con- 
nected with  his  employment;  his  employer  was  not  present,  was  not 
knowing  or  consenting  to  it;  and  it  was  not  in  his  power  to  prevent  it. 

Besides,  the  responsibility  attaching  to  those  who  own,  control,  or 
keep  animals  ferce  naturoe,  to  which  class  a  bear  belongs,  is  of  that 
strict  and  grave  character  as  not  to  be  reheved  or  modified  by  con- 
siderations of  the  kind  presented,  nor  to  be  measured  by  rules  that 
apply  to  owners  or  keepers  of  domestic  animals. 

Animals  of  this  kind,  such  as  lions,  tigers,  bears,  are  universally 
recognized  as  dangerous.  It  is  the  duty  of  those  who  own  or  keep 
them,  to  keep  them  in  such  a  manner  as  to  prevent  them  from  doing 
harm,  under  any  circumstances,  whether  provoked,  as  they  are  liable 
to  be,  or  not  provoked.  There  must  be  security  against  them  under 
all  contingencies.  Domat,  p.  475;  Merlin,  Repertoire,  tome  26,  p. 
242,  verbo  Quasi-Delit;  Marcade,  tome  5,  pp.  272,  273;  1  Law  Repts., 
p.  263;  3  Law  Repts.,  p.  330. 

Nor  does  it  matter  that  an  animal  of  this  kind  may  be  to  some 
extent  tame  and  domesticated;  the  natural  wildness  and  ferocity  of 
his  nature  but  sleeps,  and  is  liable  to  be  awakened  at  any  moment,  sud- 
denly and  unexpectedly,  under  some  provocation,  as  was  the  case  in 
this  instance. 

If  the  defendants  are  otherwise  liable  for  the  acts  of  the  bear,  the 
acts  of  the  boy  in  provoking  him  cannot,  for  these  reasons,  affect  in  the 
least  that  liability.  .  .  . 

4.  A  great  deal  of  testimony  was  taken  that  had  little  or  no  bear- 
ing upon  the  real  issues  involved  in  the  case,  and  many  bills  of  exception 
appear  in  the  record  embodying  the  objections  to  its  admission.  These 
oli()jections  went  mainly  to  the  effect  of  the  evidence,  as  held  by  the 
judge  a  quo,  though  much  of  it  was  wholly  irrelevant. 

The  conclusion  we  have  come  to  touching  the  merits  of  the  case, 
and  the  disposition  we  shall  make  of  it,  render  it  unnecessary  that  we 
should  pass  upon  these  various  bills.  The  salient  facts  of  the  case,  and 
upon  which  our  conclusions  mainly  rest,  summarized  from  the  state- 
ment heretofore  given,  are  these: 

That  the  bear  was  accepted  by  the  rifle  club  as  a  prize  to  be  shot  for 
under  the  auspices  of  the  club,  and  to  raise  a  fund  for  the  purposes  of 
the  club;  that  it  was  shot  for,  and  subsequently  carried  to  the  club 
grounds  by  the  direction  of  a  member  of  the  club  and  one  of  the  de- 
fendants ;  that  it  was  kept  there  and  fed  there  for  nearly  three  months 
by  an  employee  of  the  club,  and  the  expenses  for  its  keeping  and  feeding 
paid  for  by  the  treasurer  of  the  club,  and  an  account  of  such  expenses 
submitted  to  the  governing  committee  of  the  club,  of  which  some  of 


520  VREDENBURG  V.   BEHAN.  [CHAP.  IV. 

the  defendants  were  members;  that  it  was  seen  from  time  to  time  at 
the  club  house  by  members  of  the  club  and  by  all  of  the  defendants 
save  one;  that  no  one  objected  to  his  being  there;  that  whilst  thus  kept 
on  the  club  grounds  in  charge  of  a  keeper,  he  broke  loose,  attacked 
and  wounded  Mr.  Vredenburg,  who  died  of  the  wounds  inflicted. 

The  Code  declares,  "that  every  act  whatever  of  man  that  causes 
damage  to  another  obliges  him  by  whose  fault  it  happened  to  repair 
it." 

That  a  person  is  responsible  for  the  damage  resulting  from  "his 
negligence  or  imprudence."  That  he  is  answerable,  not  only  for  his 
own  acts,  but  for  the  acts  of  persons  for  whom  he  is  responsible,  and  of 
things  in  his  custody.    C.  C.  2315,  2316,  2317,  2321. 

The  law  upon  this  subject  is  to  the  same  effect  under  every  enlight- 
ened system  of  jurisprudence. 

Thus  a  distinguished  \\Titer  on  this  subject  has  said: 

"The  mere  keeping  of  an  animal  of  a  fierce  nature,  such  as  a  tiger 
or  bear,  or  dog  known  to  be  wont  to  bite,  is  unlawful,  and  therefore,  if 
any  person  is  bitten  or  injured  by  such  an  animal,  an  action  is  main- 
tainable against  the  person  who  keeps  it."  Addison  on  Torts,  pp.  22, 
230. 

And  again: 

"  The  owner  of  wild  and  savage  beasts,  such  as  lions,  tigers,  wolves, 
bears,  etc.,  if  he  neglects  to  keep  them  properly  secured,  is  liable  for 
injuries  committed  by  them  according  to  their  nature,  without  any 
evidence  that  he  knew  them  to  be  ferocious,  or  that  he  was  negligent 
in  the  mode  of  keeping  them,  since  he  is  bound  in  ordinary  prudence 
to  know  that  fact  and  to  secure  them  from  doing  harm."  Shearman 
and  Redfield  on  Neghgence,  §  188. 

"One  who  harbors  a  dangerous  animal  on  his  premises,  though 
not  his  owner  in  any  sense,  is  nevertheless  responsible  for  in- 
juries committed  by  it  while  on  or  near  his  premises,  to  the  same 
extent  as  if  he  owned  it."  Shearman  and  Redfield  on  Negligence, 
pp.  227,  228. 

Mr.  Justice  Blackburn,  of  the  English  Court  of  Exchequer,  thus 
lays  down  the  rule  on  this  subject: 

"We  think  the  true  rule  of  law  is,  that  the  person,  who  for  his  own 
use  or  pleasure  brings  on  his  land,  and  collects  and  keeps  there  any- 
thing likely  to  do  mischief,  if  it  escapes,  must  keep  it  at  his  peril,  and 
if  he  does  not  do  so  is  prima  facie  answerable  for  all  the  damage,  which 
is  the  natural  consequence  of  its  escape.  .  .  .  This  is,  we  think, 
established  to  be  the  law,  whether  the  things  so  brought  be  beasts,  or 
water,  or  filth,  or  stenches." 

Fletcher  v.  Rylands,  Court  of  Exchequer,  1  Law  Repts.,  263;  see, 
also,  Hale's  Pleas  of  the  Crown,  vol.  1,  430;  May  v.  Bourdetts,  9th 
Adolphus  &  Ellis  (3  Q.  B.)  n.  s.  101;  Earl  v.  Van  Alstein,  8  Barbour, 
N.  Y.  630;  41  Cal.  138. 


SECT.  11.]    FILBURN    V.  PEOPLE'S   PALACE    &   AQUARIUM    CO.,   LTD.     521 

These  principles  thus  enunciated  are  sound  and  have  our  full  ap- 
proval. 

There  is  a  recognition  of  their  spirit  in  an  ordinance  of  the  city  of 
New  Orleans  on  the  subject,  which  declares: 

"No  wild  or  ferocious  animals  shall  be  kept  within  the  limits  of  the 
city,  on  the  premises  of  individuals,  or  in  menageries,  unless  such 
animals  be  under  the  charge  of  an  armed  guard  day  and  night." 

Leovy's  City  Laws  and  Ordinances,  Art.  703. 

And  it  is  to  be  noted  that  this  bear  was  kept  on  the  club  grounds, 
within  the  city  limits,  in  open  disregard  of  this  ordinance. 

The  fundamental  principle  on  which  the  liability  of  the  defendants 
rests,  is  concisely  expressed  in  the  following  legal  maxim,  that  is  as 
old  as  the  law  itself  and  recognized  in  every  known  system  of  juris- 
prudence :  Sic  uiere  tuo  ut  alienum  non  laedas. 

Proprietors  or  co-proprietors  of  lands  or  houses  must  not  permit 
their  property  to  be  put  to  such  uses  as  to  cause  injury  to  others, 
whether  by  being  made  a  refuge  for  noxious  animals  or  a  magazine 
for  gun  powder,  dynamite,  or  other  explosive  substances,  or  as  a  gen- 
erator of  foul  and  pestilential  vapors  destructive  of  health.  And  there 
was  a  tacit,  though  clear  recognition  of  this  principle  by  the  defendants 
themselves,  or  some  of  them,  in  calling  a  meeting  after  Mr.  Vreden- 
burg's  death  to  raise  contributions  for  the  relief  of  his  family.  No 
liability  was  openly  avowed  or  intended  to  be  acknowledged  on  ac- 
count of  this  sad  affair  by  such  action,  but  there  was  a  latent  sense  of 
responsibility  evidently  felt,  which  found  expression  in  the  language  of 
one  of  the  defendants,  when  testifying  as  a  witness  on  the  trial  of  the 
case,  and  who  said  by  way  of  explaining  the  motive  that  prompted  the 
proposed  assistance,  "  that  it  was  on  account  of  the  accident  occurring 
on  the  grounds  of  the  club." 


FILBURN   V.   PEOPLE'S   PALACE   &   AQUARIUM   CO.,  LTD. 
Court  of  Appeal,  1890. 

[Reported  25  Q.  B.  D.  258.] 

Appeal  from  a  judgment  of  Day,  J. 

The  action  was  brought  to  recover  damages  for  injuries  sustained 
by  the  plaintiff  by  his  being  attacked  by  an  elephant,  which  was  the 
property  of  the  defendants,  and  was  being  exhibited  by  them.  The 
learned  judge  left  three  questions  to  the  jury :  whether  the  elephant  was 
an  animal  dangerous  to  man ;  whether  the  defendant  knew  the  elephant 
to  be  dangerous;  and  whether  the  plaintiff  brought  the  attack  on 
himself.  The  jury  answered  all  three  questions  in  the  negative.  The 
learned  judge  entered  judgment  for  the  plaintiff  for  a  sum  agreed  upon 
in  case  the  plaintiff  should  be  entitled  to  recover. 


522     FILBURN  V.  people's    PALACE   &  AQUARIUM   CO.,  LTD.     [CHAP.  IV, 

The  defendants  appealed. 

Lord  Esher,  M.  R.  The  only  difficulty  I  feel  in  the  decision  of  this 
case  is  whether  it  is  possible  to  enunciate  any  formula  under  which 
this  and  similar  cases  may  be  classified.  The  law  of  Ewgland  recog- 
nizes two  distinct  classes  of  animals;  and  as  to  one  of  those  classes,  it 
cannot  be  doubted  that  a  person  who  keeps  an  animal  belonging  to 
that  class  must  prevent  it  from  doing  injury,  and  it  is  immaterial 
whether  he  knows  it  to  be  dangerous  or  not.  As  to  another  class,  the 
law  assumes  that  animals  belonging  to  it  are  not  of  a  dangerous  nature, 
and  anyone  who  keeps  an  animal  of  this  kind  is  not  liable  for  the 
damage  it  may  do,  unless  he  knew  that  it  was  dangerous.  WTiat, 
then,  is  the  best  way  of  dealing  generally  with  these  different  cases? 
I  suppose  there  can  be  no  dispute  that  there  are  some  animals  that 
every  one  must  recognize  as  not  being  dangerous  on  account  of  their 
nature.  Whether  they  are  feroe  naiurae  so  far  as  rights  of  property  are 
concerned  is  not  the  question;  they  certainly  are  not  so  in  the  sense 
that  they  are  dangerous.  There  is  another  set  of  animals  that  the 
law  has  recognized  in  England  as  not  being  of  a  dangerous  nature, 
such  as  sheep,  horses,  oxen,  dogs,  and  others  that  I  wall  not  attempt 
to  enumerate.  I  take  it  this  recognition  has  come  about  from  the 
fact  that  years  ago,  and  continuously  to  the  present  time,  the  progeny 
of  these  classes  has  been  found  by  experience  to  be  harmless,  and  so 
the  law  assumes  the  result  of  this  experience  to  be  correct  without 
further  proof.  Unless  an  animal  is  brought  within  one  of  these  two 
descriptions  —  that  is,  unless  it  is  shown  to  be  either  harmless  by  its 
very  nature,  or  to  belong  to  a  class  that  has  become  so  by  what  may  be 
called  cultivation  —  it  falls  within  the  class  of  animals  as  to  which 
the  rule  is,  that  a  man  who  keeps  one  must  take  the  responsibility  of 
keeping  it  safe.  It  cannot  possibly  be  said  that  an  elephant  comes 
within  the  class  of  animals  known  to  be  harmless  by  nature,  or  within 
that  shown  by  experience  to  be  harmless  in  this  country,  and  conse- 
quently it  falls  within  the  class  of  animals  that  a  man  keeps  at  his 
peril,  and  which  he  must  prevent  from  doing  injury  under  any  circum- 
stances, unless  the  person  to  whom  the  injury  is  done  brings  it  on  him- 
self. It  was,  therefore,  immaterial  in  this  case  whether  the  particular 
animal  was  a  dangerous  one,  or  whether  the  defendants  had  any 
knowledge  that  it  was  so.  The  judgment  entered  was  in  these  cir- 
cumstances right,  and  the  appeal  must  be  dismissed. 

LiNDLEY,  L.  J.  I  am  of  the  same  opinion.  The  last  case  of  this 
kind  discussed  was  May  v.  Burdett,'  but  there  the  monkey  which  did 
the  mischief  was  said  to  be  accustomed  to  attack  mankind,  to  the 
knowledge  of  the  person  who  kept  it.  That  does  not  decide  this  case. 
We  have  had  no  case  cited  to  us,  nor  any  e\'idence,  to  show  that  ele- 
phants in  this  country  are  not  as  a  class  dangerous;  nor  are  they  com- 

19Q.  B.  101. 





SECT.  II.]  HARDIMAN   V.   WHOLLEY.  523 

monly  known  here  to  belong  to  the  class  of  domesticated  animals. 
Therefore  a  person  who  keeps  one  is  liable,  though  he  does  not  know 
that  the  particular  one  that  he  keeps  is  mischievous.  Applying  that 
principle  to  this  case,  it  appears  that  the  judgment  for  the  plaintiff 
was  right,  and  this  appeal  must  be  dismissed. 

BowEX,  L.  J.  I  am  of  the  same  opinion.  The  broad  principle  that 
governs  this  case  is  that  laid  down  in  Fletcher  v.  Rylands,^  that  a 
person  who  brings  upon  his  land  anything  that  would  not  naturally 
come  upon  it,  and  which  is  in  itself  dangerous,  must  take  care  that  it 
is  kept  under  proper  control.  The  question  of  liability  for  damage 
done  by  mischievous  animals  is  a  branch  of  that  law  which  has  been 
applied  in  the  same  way  from  the  times  of  Lord  Holt  ^  and  of  Hale 
until  now.  People  must  not  be  wiser  than  the  experience  of  mankind. 
If  from  the  experience  of  mankind  a  particular  class  of  animals  is 
dangerous,  though  individuals  may  be  tamed,  a  person  who  keeps  one 
of  the  class  takes  the  risk  of  any  damage  it  may  do.  If,  on  the  other 
hand,  the  animal  kept  belongs  to  a  class  which,  according  to  the 
experience  of  mankind  is  not  dangerous  and  not  likely  to  do  mis- 
chief, and  if  the  class  is  dealt  with  by  mankind  on  that  footing,  a 
person  may  safely  keep  such  an  animal,  unless  he  knows  that  the 
particular  animal  that  he  keeps  is  likely  to  do  mischief.  It  cannot  be 
doubted  that  elephants  as  a  class  have  not  been  reduced  to  a  state  of 
subjection;  they  still  remain  wild  and  untamed,  though  individuals 
are  brought  to  a  degree  of  tameness  which  amounts  to  domestication. 
A  person,  therefore,  who  keeps  an  elephant,  does  so  at  his  own  risk, 
and  an  action  can  be  maintained  for  any  injury  done  by  it,  although 
the  o-wTier  had  no  knowledge  of  its  mischievous  propensities.  I  agree, 
therefore,  that  the  appeal  must  be  dismissed. 

Appeal  dismissed. 


HARDIMAN  v.   WHOLLEY. 
Supreme  Judicial  Court  of  Massachusetts,  1899. 

[Reported  172  Mass.  411.] 

Holmes,  J.  This  is  an  action  to  recover  for  personal  injuries  caused 
by  the  kick  of  a  horse.  The  wagon  to  which  the  horse  was  attached 
had  stuck  in  the  mud  half  an  hour  before  the  accident,  and  this  horse 
and  another  had  been  unhitched  and  were  feeding  out  of  feed -bags 
attached  to  their  heads.  There  was  e\adence  that  this  horse  had  been 
made  nervous  by  the  effort  to  pull  the  wagon  out,  and  by  being 
brutally  beaten,  and  that  he  was  standing  partially  on  the  sidewalk. 
He  was  standing  at  right  angles  to  it,  and,  as  the  plaintiff  approached, 

1  Law  Rep.  1  Ex.  265;  Law  Rep.  3.  H.  L.  330. 
^  See  Mason  v.  Keeling,  12  Mod.  332. 


524  WILLIAMS    V.  BRENNAN.  [CHAP.  IV. 

suddenly  whirled  round  and  kicked  him.  The  case  is  here  upon  an 
exception  to  the  refusal  to  direct  a  verdict  for  the  defendant.  The  re- 
fusal was  right.  It  used  to  be  said  in  England,  under  the  rule  requir- 
ing notice  of  the  habits  of  an  animal,  that  every  dog  was  entitled  to 
one  worry,  but  it  is  not  universally  true  that  every  h9rse  is  entitled  to 
one  kick.  In  England,  if  the  horse  is  a  trespasser  and  kicks  anoth;er, 
the  kick  will  enhance  the  damages  without  proof  that  the  animal  was 
vicious  and  that  the  owner  knew  it.  Lee  v.  Riley,  18  C.  B.  (N.  S.)  722. 
See  Lyons  v.  Merrick,  105  Mass.  71,  76.  So,  in  this  Commonwealth, 
going  further,  it  would  seem,  than  the  English  law,  a  kick  by  a  horse 
wrongfully  at  large  upon  the  highway  can  be  recovered  for  without 
proof  that  it  was  vicious.  Barnes  v.  Chapin,  4  x\llen,  444.  Marsland 
V.  Murray,  148  Mass.  91.  Dickson  v.  McCoy,  39  N.  Y.  400,  401.  See 
Cox  V.  Burbidge,  13  C.  B.  (N.  S.)  430.  The  same  law  naturally  would 
be  applied  to  a  horse  upon  a  sidewalk  where  it  ought  not  to  be  (see 
Mercer  v.  Corbin,  117  Ind.  450,  454),  and  in  this  case  there  was  evi- 
dence of  the  further  fact  that  the  horse  was  in  an  exceptionally  nervous 
condition  in  consequence  of  the  driver's  treatment. 

Exceptions  overruled. 


WILLIAMS  V.   BRENNAN. 
Supreme  Judicial  Court  of  Massachusetts,  1912. 

[Reported  213  Ma^s.  28.] 

LoRiNG,  J.  This  is  an  action  under  R.  L.  c.  102,  §  146,  to  recover 
double  damages  for  injury  done  by  the  defendant's  dog  to  the  plaintiff's 
automobile.  The  presiding  judge,  [Quinn,  J.]  refused  to  direct  a  ver- 
dict for  the  defendant  and  the  case  is  here  on  an  exception  to  that 
ruling. 

It  appeared  that  as  the  plaintiff  was  driving  his  automobile  on  the 
right-hand  side  of  a  public  way  at  the  rate  of  some  fifteen  miles  an 
hour,  and  as  an  ice  wagon  with  a  single  heavy  horse  was  being  driven 
slowly  in  the  opposite  direction  on  the  other  side  of  the  road,  the  de- 
fendant's dog  was  seen  to  "go"  into  the  way  some  thirty  or  forty  feet 
ahead  of  the  plaintiff.  The  dog,  which  was  a  large  one  weighing  one 
hundred  and  thirty-five  pounds,  ran  toward  the  plaintiff's  automobile, 
barking  as  he  ran ;  when  he  reached  the  automobile  he  snapped  at  the 
right  fore  tire,  but  missed  it,  and  his  body  struck  the  left  fore  wheel; 
this  caused  the  automobile  to  skid  to  the  other  side  of  the  road  so  that 
"the  automobile,  still  in  contact  with  the  dog,  came  directly  in  front 
of  the"  horse  of  the  ice  wagon.  "  The  dog  did  not  touch  the  horse,  but 
when  the  automobile  came  in  front  of  the  horse  as  aforesaid,  the  horse 
reared  and  descended  upon  the  top  of  the  automobile,  causing  injuries 


SECT.  III.]  KKACH   V.   HEILMAN.  525 

to  it  for  which  this  action  is  brought."  The  only  contention  made  by 
the  defendant  is  that  on  this  evidence  the  jury  were  not  warranted 
in  finding  that  the  dog  was  the  sole,  direct,  and  proximate  cause  of 
the  injury.  Denison  v.  Lincoln,  131  Mass.  236,  is  decisive  against  that 
contention. 

Exceptions  overruled. 


SECTION   III. 

The  "  Civil  Damage"  Act. 

KRACH  V.   HEILMAN. 
Supreme  Court  of  Indiana,  1876. 

[Reported  53  Ind.  517.] 

WoRDEN,  C.  J.  Complaint  by  the  appellee  against  the  appellants 
in  two  paragraphs.  Demurrer  to  each  paragraph  for  want  of  sufficient 
facts  overruled,  and  exception.  Issue,  trial  by  jury,  verdict,  and  judg- 
ment for  plaintiff.^ 

The  substance  of  the  case  made  by  both  paragraphs  is,  that  the 
defendants  furnished  the  deceased  with  intoxicating  liquor,  until  he 
became  drunk  and  insensible  and  unable  to  take  care  of  himself;  that 
in  going  home,  lying  down  in  his  wagon  in  consequence  of  his  intoxica- 
tion, he  received  the  injury  from  the  barrel  of  salt,  which  injury  he 
would  not  have  received  but  for  having  been  intoxicated,  and  from 
which  injury  he  died. 

One  of  the  objections  made  to  the  complaint,  passing  over  others,  is, 
in  our  judgment,  fatal  to  both  paragraphs.  The  rule  of  law  is,  that  the 
immediate,  and  not  the  remote,  cause  of  any  event  is  regarded.  We 
have  seen  that  if  the  plaintiff  is  entitled  to  recover,  it  is  because  she 
wasWnjured  "in  consequence  of  the  intoxication"  of  the  deceased. 
The  immediate  cause  of  the  injury  to  the  plaintiff  was  the  death  of 
the  deceased.  The  remote  cause  may  have  been  his  intoxication, 
which  led  to  his  injuries,  which  injuries,  in  their  turn,  led  to  his  death. 
The  plaintiff,  therefore,  was  not  immediately  injured  by  the  intoxica- 
tion of  the  deceased. 

The  rule  of  law  above  stated  is  well  enough  settled.  The  difficulty 
that  usually  arises  is  in  its  application.  It  is  sometimes  difficult  to 
determine  what  is  the  remote,  and  what  the  proximate  cause  of  an 
event.  But  no  difficulty  of  that  sort  arises  in  the  present  case.  Here, 
according  to  the  allegations,  it  is  clear  that  the  intoxication  of  the 
deceased  was  only  the  remote  cause  of  the  injury  to  the  plaintiff, 
while  his  death  was  the  immediate  cause  of  such  injury.     For  such 

^  The  complaint  is  omitted.  —  Ed. 


526 


MEAD    V.    STRATTON. 


[chap.  IV. 


injury,  we  think,  on  principle  and  well-considered  authority,  the  statute 
does  not  render  the  defendants  liable  to  the  plaintiff.^ 

The  defendants,  in  causing  the  intoxication  of  the  deceased,  could 
not  have  anticipated  that  on  his  way  home  he  would  be  fatally  injured 
by  the  salt-barrel.  That  was  an  extraordinary  and  fortuitous  event, 
not  naturally  resulting  from  the  intoxication.  Suppose,  by  way  of 
illustration,  that  a  person,  by  reason  of  intoxication,  lies  down  under 
a  tree,  and  a  storm  blows  a  limb  down  upon  him  and  kills  him,  or  that 
lightning  strikes  the  tree  and  kills  him.  Could  it  be  said,  in  a  legal 
sense,  that  his  death  was  caused  by  intoxication?  In  the  chain  of 
causation,  the  intoxication  may  have  been  the  remote  cause  of  his 
death,  because,  if  he  had  not  been  intoxicated,  he  would  not  have  placed 
himself  in  that  position,  and  therefore  would  not  have  been  struck  by 
the  limb  or  lightning.  In  the  case  supposed,  it  may  be  assumed  as 
clear,  that  the  parties  causing  the  intoxication  would  not  be  liable, 
under  the  statute,  to  the  widow,  as  for  an  injury  to  her  caused  by  the 
intoxication  of  the  deceased.  Yet  there  is  no  substantial  difference 
between  the  case  supposed  and  the  real  case  here.  See,  on  the  subject 
of  remote  and  proximate  causation,  the  case  of  Kelley  v.  The  State, 
53  Ind.  311;  also,  Durham  v.  Musselman,  2  Blackf.  96. 

The  judgment  below  is  reversed,  with  costs,  and  the  cause  remanded, 
with  instructions  to  the  court  below  to  sustain  the  demurrer  to  each 
paragraph  of  the  complaint. 


MEAD  V.   STRATTON. 
.^  Court  of  Appeals,  New  York,  1882. 

[Reported  87  N.  Y.  493.] 

Miller,  J.  This  action  was  brought  by  the  plaintiff,  who  was  the 
wife  of  Charles  Mead,  deceased,  to  recover  damages  sustained  in  her 
means  of  support  by  the  death  of  her  husband  in  consequence  of 
intoxication  produced  by  liquor  sold  to  him  by  said  defendant  Isaac  J. 
Stratton,  at  the  hotel  kept  by  him,  of  which  the  said  Margaret  M. 
Stratton,  the  wife  of  said  Isaac  J.  Stratton,  was  the  owner;  and  which, 
it  is  claimed,  she  rented  to  her  husband,  or  permitted  to  be  occupied 
as  a  hotel,  knowing  that  intoxicating  liquors  were  to  be  and  had  been 
sold  upon  said  premises. 

The  complaint  alleges  that  in  consequence  of  the  acts  of  the  de- 
fendants stated  and  set  forth,  and  in  consequence  of  the  intoxication 
of  the  late  husband  of  plaintiff,  caused  as  aforesaid,  plaintiff  had 
been  injured  in  her  means  of  support  and  property. 

^The  court  here  considered  the  following  cases:  Tisdale  v.  Norton,  8  Met.  3SS; 
INIarble  v.  Worcester,  4  Gray,  395;  Grain  v.  Petrie,  6  Hill,  522;  Ryan  v.  New  York 
Central  R.R.,  35  N.  Y.  210;  Fairbanks  v.  Kerr,  70  Pa.  86.  —  Ed. 


SECT.  III.]  MEAD    V.   STRATTON.  '     527 

The  essential  facts  established  by  the  verdict  were  that  the  de- 
fendant Isaac  J.  Stratton  was  the  keeper  of  the  hotel,  and  the  deed 
was  given  to  his  wife  who  had  general  charge  of  the  house,  except 
the  bar,  but  was  cognizant  of  the  fact  that  intoxicating  liquors  were 
sold  there;  that  the  deceased  came  to  the  house  with  a  horse  and 
buggy,  drank  intoxicating  liquors  several  times  there,  and  became  so 
much  intoxicated  that  he  was  helped  into  his  buggy  upon  starting  for 
home;  that  he  must  have  fallen  in  his  buggy,  as  he  was  found  dead, 
with  his  knee  caught  tightly  under  the  iron  cross  or  foot  bar,  and  his 
head  over  between  the  wheel  and  the  wagon,  so  that  his  head  was 
beaten  by  the  spokes  and  otherwise  injured;  and  that  he  left  a  wife 
and  several  children  who  were  dependent  upon  him  for  support. 

The  statute  (chap.  646,  Laws  of  1873)  under  which  this  action  is 
brought  provides,  that  every  husband,  wife,  etc.,  "or  other  person 
who  shall  be  injured  in  person  or  property  or  means  of  support  by  any 
intoxicated  person,  or  in  consequence  of  the  intoxication  .  .  .  shall 
have  a  right  of  action  in  his  or  her  name  against  the  person  who  shall, 
by  selling  or  giving  away  the  intoxicating  liquors,  cause  the  intoxica- 
tion .  .  .  and  any  person  or  persons  owning  or  renting,  or  permitting 
the  occupation  of  any  building  or  premises,  and  having  knowledge  that 
intoxicating  liquors  are  to  be  sold  therein,  shall  be  liable,  severally  or 
jointly  with  the  person  or  persons  selling  .  .  .  for  all  damages  sus- 
tained and  for  exemplary  damages."  The  statute  cited  pro\ddes  for 
a  recovery  by  action  for  injuries  to  person  or  property,  or  means  of 
support,  without  any  restriction  whatever.  Both  direct  and  conse- 
quential injuries  are  included,  and  it  was  evidently  intended  to  create 
a  cause  of  action  unknown  to  the  common  law,  and  a  new  ground  and 
right  of  action.  (Volans  v.  Owen,  74  N.  Y.  526.)  The  injury  to  the 
means  of  support  was  one  of  the  main  grounds  of  the  action,  and  when 
the  party  is  deprived  of  the  usual  means  of  maintenance,  which  he  or 
she  was  accustomed  to  enjoy  previously,  by  or  in  consequence  of  the 
intoxication  or  the  acts  of  the  person  intoxicated,  the  action  can  be 
maintained.  (Id.)  It  is  evident  that  the  legislature  intended  to  go 
in  such  a  case  far  beyond  anything  known  to  the  common  law,  and  to 
provide  a  remedy  for  injuries  occasioned  by  one  who  was  instrumental 
in  producing,  or  who  caused  such  intoxication.  While  a  statute  of  this 
character  should  not  be  enlarged,  it  should  be  interpreted,  where  the 
language  is  clear  and  explicit,  according  to  its  true  intent  and  meaning, 
having  in  view  the  evil  to  be  remedied  and  the  object  to  be  attained. 
The  evident  object  was  to  suppress  the  sale  and  use  of  intoxicating 
liquors,  and  to  punish  those  who,  in  any  form,  furnished  means  of 
intoxication,  by  making  them  liable  for  damages  which  might  arise, 
which  were  caused  by  the  parties  who  furnished  such  means.  If  the 
injury  which  had  resulted  to  the  deceased  in  consequence  of  his  intoxi- 
cation had  disabled  him  for  life,  or  to  such  an  extent  as  to  incapacitate 
him  for  labor  and  for  earning  a  support  for  his  family,  it  would  no 


528   *  MEAD   V.   STRATTON.  [CHAP.  IV. 

doubt  be  embraced  within  the  meaning  and  intent  of  the  statute. 
That  death  ensued  in  consequence  thereof,  furnishes  much  stronger 
ground  for  a  claim  for  a  loss  of  means  of  support;  and  a  different  rule 
in  the  latter  case  would  make  provision  for  the  lesser  and  temporary 
injury,  while  that  which  was  greatest  and  most  serious  would  be  with- 
out any  remedy  or  means  of  redress.  Such  could  not  have  been  the 
intention  of  the  lawmakers,  and  the  statute  was  designed  to  embrace 
and  must  manifestly  cover  and  include  all  injuries  produced  by  the 
intoxication,  and  which  legitimately  result  from  the  same.  If  it  is  an 
injury  which  can  be  repaired  by  damages,  as  that  arising  from  a  tem- 
porary disability,  or  one  where  death  comes  as  a  natural  and  legitimate 
consequence  of  the  intoxication,  a  case  is  made  out  within  the  statute 
which  entitles  the  injured  party  to  recover  such  damages.  The  argu- 
ment that  in  this  case  it  was  the  remote  cause,  and  not  the  natural 
and  proximate  cause  of  the  act  of  the  defendant,  would  apply  with 
equal  force  if  death  had  not  followed,  and,  we  think,  has  no  point  under 
the  peculiar  circumstances  of  this  case. 

There  are  some  decisions  in  the  Supreme  Court  of  this  State  which 
bear  upon  the  subject.  In  Hayes  v.  Phelan  (4  Hun,  733)  the  opinion 
holds  that  the  statute  gave  a  right  of  action  only  in  cases  where  it  lies 
against  the  intoxicated  person.  This  conclusion  does  not,  however, 
appear  to  have  been  sustained  by  a  majority  of  the  judges  constituting 
the  General  Term,  and  in  a  note  to  Dubois  v.  Miller  (5  Hun,  335)  an 
opinion  of  James,  J.,  is  published,  dissenting  from  the  views  expressed 
in  Hayes  v.  Phelan,  and  it  is  stated  that  Boardman,  J.,  concurred  only 
in  the  result  arrived  at  in  the  decision,  and  only  two  justices  were 
present.  In  Brookmire  v.  Monaghan  (15  Hun,  16),  where  the  complaint 
asked  damages  only  by  reason  of  the  death  of  plaintiff's  husband,  which, 
it  was  alleged,  was  caused  by  intoxication  by  liquor  sold  to  the  deceased 
by  the  defendant,  it  was  held  that  the  complaint  did  not  state  a  cause 
of  action  under  the  Civil  Damage  Act,  and  it  was  said  that  the  court 
had  heretofore  decided,  in  Hayes  v.  Phelan,  that  such  damages  are  not 
recoverable  under  the  act  of  1873.  The  same  question  arose  in  the 
fourth  judicial  department  in  Jackson  v.  Brookins  (5  Hun,  530);  and 
it  was  there  held,  that  where  several  persons  became  intoxicated,  and 
engaged  in  an  aflfray  in  which  one  is  killed,  his  widow  may  maintain 
an  action  against  the  person  who  sold  the  liquor  which  caused  the  in- 
tox-ication,  to  recover  damages  sustained  by  her  for  the  death  of  the 
husband.  The  same  doctrine  is  upheld  in  Smith  v.  Reynolds  (8  Hun, 
128).  In  Quain  v.  Russell  (8  id.  319),  in  the  third  department,  it  was 
held  by  a  majority  of  the  court,  that  it  was  not  essential  to  the  exist- 
ence of  the  cause  of  action,  under  the  Civil  Damage  Act,  against  the 
vendor  of  liquors,  that  an  action  should  also  be  maintainable  against 
the  intoxicated  person,  and  it  is  sufficient  if  the  wife  has  been  injured 
in  her  means  of  support  through  the  intoxication  of  the  husband.  The 
case  of  Hayes  v.  Phelan  is  referred  to,  and  it  is  said  that  no  such  prin- 


II 


SECT.  III.]  .     MEAD   V,   STRATTON.  529 

ciple  as  is  claimed  in  the  last  case  was  decided  by  the  court.  It  will 
thus  be  seen  that  the  decisions  of  the  Supreme  Court  in  this  State  are 
not  entirely  harmonious.  In  the  State  of  Illinois  it  is  held  that  the 
action  will  lie  when  death  ensues.  (See  Schroder  v.  Crawford,  94  111. 
357;  Hackett  v.  Smelsley,  77  id.  109.)  The  same  rule  is  upheld  in 
Nebraska  (Roose  v.  Perkins,  9  Neb.  304),  and  in  the  State  of  Iowa 
(Rafferty  v.  Buckman,  46  Iowa,  195).  Some  exceptions  are  made  by 
the  courts  of  Illinois  when  the  per-son  intoxicated  is  killed  in  an  affray 
or  when  death  results  from  exposure.  (Shugart  v.  Egan,  83  111.  56; 
Schmidt  v.  Mitchell,  84  id.  195.)  It  is  not  necessary  to  decide  whether 
these  decisions  are  based  on  a  sound  principle,  as  no  such  question 
arises  in  the  case  at  bar.  Cases  are  also  cited  from  Indiana,  which  are 
claimed  to  be  adverse  to  the  views  expressed.  (See  Krach  v.  Heilman, 
53  Ind.  517;  Collier  v.  Early,  54  id.  559;  Backes  v.  Dant,  55  id.  181.) 
In  Krach  v.  Heilman  (supra),  the  person  intoxicated  was  killed  in  an 
affray.  The  last  two  cases  cited  are  somewhat  analogous  to  the  case 
at  bar,  but  the  decision  of  the  court  is  not,  we  think,  well  supported  in 
either  of  them.  It  is  also  held  in  Ohio,  that  under  the  act  in  that  State 
in  relation  to  the  sale  of  intoxicating  liquors  for  injury  to  the  means  of 
support  in  consequence  of  intoxication  which  caused  death,  no  recovery 
of  damages  can  be  had.  (Davis  v.  Justice,  31  Ohio,  359;  Kirchner  v. 
Myers,  35  id.  85.)  We  cannot  concur  in  such  an  interpretation  of  the 
act  in  question,  and  for  the  reasons  already  stated  are  of  the  opinion, 
that,  if  the  death  of  the  deceased  was  a  result  necessarily  following  the 
intoxication,  and  was  attributable  to  such  intoxication,  an  action  will 
lie  to  recover  the  damages  arising  to  the  means  of  support  of  the  plain- 
tiff by  reason  thereof.  While  thus  holding,  it  is  not  necessary  to  decide 
whether  a  person  producing  the  intoxication  would  be  liable  when  death 
ensued  by  reason  of  an  affray  caused  thereby,  or  under  different  cir- 
cumstances from  those  which  are  presented  in  the  case  at  bar.  Nor  are 
we  called  upon  to  consider  in  this  case  the  effect  of  the  statute  so 
far  as  it  affects  the  right  of  action  of  the  children  of  the  deceased  for 
damages  sustained  by  each  of  them,  as  that  question  is  not  now  pre- 
sented. The  conclusion  follows,  that  there  was  no  error  committed  by 
the  judge  upon  the  trial  in  any  of  his  rulings  in  regard  to  the  question 
considered.  A  claim  is  also  made,  that  the  judge  erred  in  refusing  to 
dismiss  the  complaint,  or  to  nonsuit  the  plaintiff  as  to  the  defendant 
Margaret  M.  Stratton.  The  title  to  the  hotel  was  in  her,  and  she  lived 
there  with  her  husband,  having  charge  of  the  domestic  arrangements 
in  conducting  the  business  of  the  hotel.  There  is  evidence  tending  to 
show  that  she  had  knowledge  that  her  husband  was  engaged  in  the 
business  of  selling  intoxicating  liquors,  and  that  he  intended  to,  and  did 
actually,  carry  on  and  prosecute  such  business.  Under  the  evidence  it 
was  a  question  of  fact  for  the  jury  to  determine,  whether  she  had 
knowledge  that  the  building  was  occupied  and  used  by  her  husband  for 
any  such  purpose.    And  this  result  was  to  be  arrived  at  after  a  due 


530 


NEU   V.   McKECHNIE. 


[chap.  IV. 


consideration  of  the  relations  existing  between  the  husband  and  his 
wife,  and  the  circumstances  surrounding  the  case."^  .  .  . 

It  is  not  important,  we  think,  to  consider  whether  the  strict  relation 
of  landlord  and  tenant  existed,  if  Mrs.  Stratton  was  the  owner,  and 
permitted  her  husband  to  occupy  with  the  knowledge  of  the  business 
in  which  he  was  engaged  of  selling  intoxicating  liquors.  There  was  no 
error  in  any  portion  of  the  charge  to  which  exceptions  were  taken,  or 
in  the  refusal  to  charge  as  requested,  or  in  any  other  of  the  rulings  on 
the  trial. 

The  judgment  was  right,  and  should  be  affirmed. 

All  concur,  except  Rapallo,  J.,  taking  no  part. 

Judgment  affirmed. 


NEU  V.  McKECHNIE. 
Court  of  Appeals,  New  York,  1884. 

[Reported  95  iV.  Y.  632.] 

Danforth,  J.  The  act  entitled  "  An  act  to  suppress  intemperance, 
pauperism  and  crime"  (Chap.  646,  Laws  of  1873),  provides  in  sub- 
stance that  certain  persons,  and  among  others,  a  "child,"  who  shall 
be  injured  in  means  of  support  by  any  intoxicated  person,  or  in  conse- 
quence of  the  intoxication  of  any  person,  shall  have  a  right  of  action 
against  any  person  who,  "  by  selling  .  .  .  intoxicating  liquors,  caused 
the  intoxication  in  Vv^hole  or  in  part,"  and  may  recover  from  such  vendor 
all  damages  so  sustained,  and  also  exemplary  damages. 

This  action  is  brought  under  that  act.  The  verdict  of  the  jury  es- 
tablishes that  the  plaintiff  at  the  time  the  alleged  cause  of  action  ac- 
crued was  a  child  of  the  age  of  fifteen  years,  the  son  of  Jacob  and 
Barbara  Neu;  that  he  was  living  with  his  parents  and  dependent  upon 
his  father  for  support,  when  the  latter,  in  a  state  of  intoxication,  pro- 
duced in  part  by  the  use  of  lager  beer,  sold  to  him  by  the  defendants, 
murdered  plaintiff's  mother  and  then  committed  suicide.  Upon  all 
these  questions  there  was  evidence  proper  for  submission  to  the  jury, 
and  their  finding  in  regard  to  them  has  not  been  disturbed  by  the 
General  Term.    Their  conclusion  is  not  open  to  review  here. 

The  learned  counsel  for  the  appellants,  however,  argues  with  much 
earnestness  that  the  act  which  deprived  the  plaintiff  of  his  father  and 
cut  off  the  support  which  he  had  before  enjoyed  was  not  a  natural 
consequence  of  the  use  of  the  beer  so^d  by  the  defendants;  that  they 
were  not  bound  to  know  that  Jacob  Neu  "  would  strike  his  wife  on  the 
head  with  an  axe,  and  then  cut  his  own  throat  with  a  razor."  Perhaps 
not.  But  a  cause  of  action  may  exist  without  such  foresight.  The 
statute  does  not  even  require  that  the  vendor  shall  know  that  drunken- 

'  The  discussion  of  this  point  is  omitted.  —  Ed. 


SECT.  III.]  DENNISON   V.   VAN   WORMER.  531 

ness  leads  to  crime  of  any  degree,  nor  even  that  it  is  the  cause  of  pov- 
erty and  beggary,  and  consequent  distress  to  the  drunkard's  family. 
It  is  enough  that  these  results  come  from  intoxication,  and  so  in  Hill  v. 
Berry,  75  N.  Y.  229,  a  wife  recovered  of  the  landlord  and  his  tenant 
because  by  reason  of  liquors  sold  by  the  latter  her  husband  became 
intoxicated,  wasted  his  money,  neglected  his  employment,  and  became 
incompetent  to  labor,  and,  therefore,  unable  to  provide  for  her,  and  she 
was  obliged  to  care  for  him  while  in  that  condition.  She  suffered  not 
only  because  his  substance  was  reduced  to  nothing,  but  from  the  loss 
of  productive  labor.  In  Bertholf  v.  O'Reilly,  74  N.  Y.  509,  30  Am.  Rep. 
323,  the  landlord  was  required  to  pay  for  the  plaintiff's  horse,  because 
it  died  from  overdriving  induced  by  the  driver's  intoxication  through 
liquors  sold  by  the  defendant's  lessee.  In  Mead  v.  Stratton,  87  N.  Y. 
493,  41  Am.  Rep.  386,  the  wife  recovered  under  this  act,  because  the 
husband,  while  intoxicated  by  liquors  sold  on  the  defendant's  premises, 
was  beaten  to  death  by  the  wheel  of  his  own  wagon  while  the  reins 
were  in  his  hand,  although  he  was  in  a  state  of  stupor. 

In  those  cases,  as  well  as  in  others  arising  under  the  act,  liability  was 
established  from  the  sale  of  liquors  producing  intoxication,  and  the 
act  of  the  intoxicated  person  causing  injury  to  the  plaintiff  in  his  person, 
property,  or  means  of  support.  Those  elements  exist  here.  The  cause 
of  action  is  neither  taken  away  nor  mitigated  because  the  cause  of 
injury  also  constitutes  a  crime.  The  jury  were  not  to  inquire  whether 
either  "the  homicide  or  suicide  were  the  natural,  reasonable,  or  prob- 
able consequences  of  the  defendants'  act."  It  is  enough  if  while  intoxi- 
cated in  whole  or  in  part  by  liquors  sold  by  the  defendants,  those  acts 
were  committed,  if  by  reason  of  them,  or  either  of  them,  the  plaintiff's 
means  of  support  were  affected  to  his  injury.^ 


^  DENNISON  V.  VAN  WORMER. 

Supreme  Court  of  Michigan,  1895. 

[Reported  107  Mich.  461.] 

McGrath,  C.  J.  This  is  case  against  a  saloon  keeper  and  his  bonds- 
men. The  declaration  alleges  that  the  sale  occurred  on  Sunday;  that 
plaintiff's  husband  was  intoxicated  at  the  time  of  the  sale,  and  was  in 
the  habit  of  getting  intoxicated,  to  defendant  Van  Wormer's  knowledge; 
that  he  drank  the  liquor  sold  to  him,  and  became  more  intoxicated; 
that  while  so  intoxicated,  and  being  thereby  deprived  of  his  reason,  he 
committed  the  crime  of  burglary,  by  breaking  and  entering  a  certain 
store  in  the  night-time,  for  which  crime  he  was  arrested,  tried,  and 

'  The  remainder  of  the  opinion  discusses  another  question.  —  Ed. 


532  DENNISON   V.    VAN    WORMER.  [CHAP.  IV. 

convicted,  and  sentenced  to  the  house  of  correction  for  the  term  of 
three  years.  It  appeared  upon  the  trial  that  the  husband  had  pre- 
\^ously  committed  Hke  offenses,  and  had  served  time  in  Detroit  and 
Cleveland  for  two  of  them.  The  jury  returned  a  verdict  of  no  cause  of 
action.^ 

The  language  of  the  statute  (3  How.  Stat.  §  2283  e  3)  is: 

"Every  wife,  child,  parent,  guardian,  husband,  or  other  person  who 
shall  be  injured  in  person  or  property  or  means  of  support  or  otherwise 
by  any  intoxicated  person,  or  by  reason  of  the  intoxication  of  any  per- 
son, or  by  reason  of  the  selling,  giving,  or  furnishing  any  spirituous, 
intoxicating,  fermented,  or  malt  liquors  to  any  person,  shall  have  a 
right  of  action  in  his  or  her  own  name  against  any  person  or  persons 
who  shall,  by  selling  or  giving  any  intoxicating  or  malt  liquor,  have 
caused  or  contributed  to  the  intoxication  of  such  person  or  persons,  or 
who  have  caused  or  contributed  to  such  injury." 

This  statute  clearly  refers  to  such  injuries  to  persons,  property,  or 
means  of  support  as  are  the  direct  results  of  the  acts  done  while  in- 
toxicated, and  to  such  other  injuries  as  indirectly  result  by  reason  of 
the  intoxication.  In  Brockway  v.  Patterson,  72  Mich.  122,  Lane  and 
Brockway  were  both  intoxicated,  and  quarreled.  Lane  striking  Brock- 
way  and  causing  his  death.  In  Thomas  v.  Dansby,  74  Mich.  398, 
Thomas  and  Free  were  both  intoxicated,  and  the  former's  leg  was 
broken  by  the  latter.  In  Wright  v.  Treat,  83  Mich.  110,  the  buggy  in 
which  plaintiff  was  riding  was  overturned,  and  plaintiff  was  injured, 
by  a  collision  with  a  vehicle  driven  by  Wells  and  Shafer,  who  were  in- 
toxicated and  were  recklessly  driving.  In  Doty  v.  Postal,  87  Mich. 
143,  plaintiff's  husband  was  killed  by  an  intoxicated  person.  In 
Eddy  V.  Courtright,  91  Mich.  264,  plaintiff's  adult  son  was  drowned 
while  intoxicated.  In  Neu  v.  McKechnie,  95  N.  Y.  632,  plaintiff's 
father  killed  the  former's  mother  and  then  himself  while  intoxicated. 
In  these  cases  the  act  done  injured  plaintiff's  person,  or  took  from  plain- 
tiff the  means  of  support.  In  the  present  case,  plaintiff's  husband  was 
not  injured  or  killed  by  an  intoxicated  person,  nor  did  the  act  done  by 
him  cut  off  her  support.  The  act  done  was  not  a  direct  blow  at  her 
person,  property,  or  means  of  support.  It  was  his  arrest,  conviction, 
and  sentence  which  deprived  her  of  his  aid.  And,  too,  a  felonious  in- 
tent was  an  essential  ingredient  of  the  crime  for  which  he  was  convicted. 

Whether  that  conviction  was  or  was  not  conclusive,  it  is  unnecessary 
here  to  determine.  The  trial  court  submitted  the  question  to  the  jury 
under  instructions  most  favorable  to  plaintiff. 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  III.]  GAGE   V.  HAKVEY.  533 


GAGE  V.  HARVEY. 
Supreme  Court  of  Arkansas,  1898. 

[Reported  66  Ark.  68.] 

Battle,  J.  The  question  in  this  case  is,  can  one  who  becomes  in- 
toxicated upon  Hquor  sold  to  him  in  a  saloon  or  dram-shop  by  the  keeper 
thereof  or  his  agents,  and  thereby  incapacitated  to  hold  and  take  care 
of  his  money,  and  who,  while  in  that  condition,  loses  it  by  having  it 
forcibly  or  without  his  knowledge  or  consent  taken  from  his  pockets  by 
some  person,  maintain  an  action  against  the  keeper  and  the  sureties 
on  his  bond  to  recover  the  money  so  taken? 

This  question  arises  under  section  4870  of  Sandels  &  Hill's  Digest, 
which  provides:  "Each  applicant  for  a  dram-shop  or  drinking  saloon 
license  .  .  .  shall  enter  into  bond  to  the  State  of  Arkansas,  in  the  penal 
sum  of  two  thousand  dollars,  conditioned  that  such  applicant  will  pay 
all  damages  that  may  be  occasioned  by  reason  of  liquor  sold  at  his  house 
of  business,  .  .  .  which  bond  shall  have  two  good  securities  thereto, 
to  be  approved  of  by  the  court;"  and  under  section  4873  which  reads 
as  follows :  "  Any  person  aggrieved  by  the  keeping  of  said  dram-shop  or 
drinking  saloon  .  .  .  may  have  an  action  on  said  bond  against  the 
principal  and  securities  for  the  recovery  thereof." 

The  answer  to  the  question  obviously  depends  upon  the  meaning  of 
the  words,  "  conditioned  that  such  applicant  will  pay  all  damages  that 
may  be  occasioned  by  reason  of  liquor  sold  at  his  house  of  business," 
which  are  used  in  section  4870.  They  should  be  construed  according 
to  the  general  rule  fixing  the  Hmit  of  the  liability  of  parties  for  the 
consequences  of  their  acts  in  other  cases,  as  they  in  no  way  indicate  an 
intent  to  make  the  liability  of  the  saloon  keeper  an  exception  to  such 
rul^.  According  to  their  legal  effect,  they  bind  him  to  pay  all  damages 
that  may  be  the  natural  and  proximate  result  of  the  use  or  consump- 
tion of  liquor  sold  by  him  or  his  agents  at  his  place  of  business.  Fur- 
ther than  this  the  law  does  not  extend  the  liability  on  his  bond  on  ac- 
count of  the  sale  of  liquor.  As  said  by  Lord  Bacon :  "  It  were  infinite 
for  the  law  to  consider  the  cause  of  causes,  and  their  impulsion  one  of 
another;  therefore  it  contenteth  itself  with  the  immediate  cause,  and 
judgeth  of  acts  by  that,  without  looking  to  any  further  degree." 
Bacon's  Maxims,  Reg.  1;  Broom's  Legal  Maxims,  165. 

The  material  inquiry  in  this  case  is,  therefore,  whether  the  use  or 
consumption  of  the  liquor  sold  by  the  keeper  or  his  agents  at  his  place 
of  business  was  the  proximate  cause  of  the  loss  of  the  money  mentioned 
in  the  question  propounded. 

In  determining  whether  an  act  of  a  defendant  is  the  proximate  cause 
of  an  injury,  the  rule  is  that  the  injury  must  be  the  natural  and  prob- 


534  GAGE   V.   HAKVEY.  [CHAF.  IV. 

able  consequence  of  the  act  —  such  a  consequence,  under  the  surround- 
ing circumstances  of  the  case,  as  might  and  ought  to  have  been  fore- 
seen by  the  defendant  as  likely  to  flow  from  his  act;  the  act  must,  in 
a  natural  and  continuous  sequence,  unbroken  by  any  new  cause,  oper- 
ate as  an  efficient  cause  of  the  injury.  If  a  third  person  intervenes 
between  the  act  of  the  defendant  and  the  injury,  and  does  a  culpable 
act,  for  which  he  is  legally  responsible,  which  produces  the  injury,  and 
without  it  the  injury  would  not  have  occurred,  and  the  act  of  the  de- 
fendant furnished  merely  an  occasion  for  the  injury,  but  not  an  effi- 
cient cause,  the  defendant  would  not  be  liable.  For  no  one  is  responsible 
for  the  independent  wrong  of  a  responsible  person  to  whom  he  sustains 
no  relation  which  makes  him  liable  for  his  wrong  independent  of  an 
actual  participation  therein  or  connection  therewith,  as,  for  instance, 
the  master  for  the  acts  of  the  servant  in  the  scope,  course,  or  range  of 
his  employment. 

Mr.  Wharton  states  the  doctrine  in  question  and  answer  as  follows: 
"  Supposing  that,  if  it  had  not  been  for  the  intervention  of  a  responsible 
third  party,  the  defendant's  negligence  would  have  produced  no  damage 
to  the  plaintiff,  is  the  defendant  liable  to  the  plaintiflF?  This  question 
must  be  answered  in  the  negative;  for  the  general  reason  that  causal 
connection  between  negligence  and  damage  is  broken  by  the  interpo- 
sition of  independent  responsible  human  action.  I  am  negligent  on  a 
particular  subject-matter  as  to  which  I  am  not  contractually  bound. 
Another  person,  moving  independently,  comes  in,  and  either  negli- 
gently  or  maliciously  so  acts  as  to  make  my  negligence  injurious  to  a 
third  person.  If  so,  the  person  so  intervening  acts  as  a  non-conductor, 
and  insulates  my  negligence,  so  that  I  cannot  be  sued  for  the  mischief 
which  the  person  so  intervening  directly  produces.  He  is  liable  to 
the  person  injured."    Wharton,  Negligence,  §  134,  et  seq. 

We  will  give  a  few  illustrations  of  the  rule  stated,  beginning  with 
Alexander  v.  Town  of  New  Castle,  17  N.  E.  Rep.  200,  in  which  a  town 
was  sued  for  injuries  alleged  to  have  been  caused  by  a  pit  or  excavation 
in  a  street,  which  the  town  wrongfully  and  negligently  suffered  and 
permitted  to  remain  open  and  uninclosed.  The  plaintiff  was  a  special 
constable,  and  was  throwm  into  the  pit  by  a  prisoner  he  had  under 
arrest,  as  they  were  passing  and  opposite  the  pit,  and  was  injured,  the 
prisoner  escaping.  It  was  insisted  that,  as  the  pit  or  excavation,  so 
wrongfully  and  negligently  permitted  to  remain  open  and  uninclosed, 
afforded  the  prisoner  the  opportunity  of  throwing  the  plaintiff  into  it, 
as  a  means  of  escape,  it  was,  in  legal  contemplation,  the  proximate 
cause  of  the  injuries  which  the  plaintiff  received.  But  the  court  held 
that  the  prisoner  was  clearly  an  intervening  as  well  as  an  independent 
human  agency  in  the  infliction  of  the  injuries  of  which  the  plaiatiff 
complained,  and  that  the  town  was  not  liable.  In  that  case  the  pit 
afforded  the  opportunity  to  inflict  the  injury,  but  was  not  an  efficient 
cause  of  it. 


SECT.  III.]  GAGE    V.    HARVEY.  535 

In  Vicars  v.  Wilcocks,  8  East,  1,  the  plaintiff  sued  the  defendant  for 
slander,  which  was  uttered  in  a  conversation  with  persons  who  were  not 
his  employers,  but  was  communicated  to  his  master,  and  attempted 
to  hold  him  liable  for  the  damage  he  suffered  by  reason  of  his  master 
discharging  him,  in  consequence  of  the  slander,  before  the  expiration 
of  his  term  of  service.  And  Lord  Ellenborough  said  that  the  special 
damage  must  be  the  legal  and  natural  consequence  of  the  words  spoken, 
otherwise  it  did  not  sustain  the  declaration;  and  here  it  was  an  illegal 
consequence,  a  mere  wrongful  act  of  the  master  for  which  the  defendant 
was  no  more  answerable  than  if,  in  consequence  of  the  words,  other 
persons  had  afterwards  assembled  and  seized  the  plaintiff,  and  thrown 
him  into  a  horse  pond  by  way  of  punishment  for  his  supposed  trans- 
gression. And  his  lordship  asked  whether  any  case  could  be  mentioned 
of  an  action  of  this  sort  sustained  by  proof  only  of  an  injury  sustained 
by  the  tortious  act  of  a  third  person.  Cuff  v.  Newark  &  N.  Y.  R.  Co., 
35  N.  J.  L.  31. 

In  Shugart  v.  Egan,  83  111.  56,  the  plaintiff's  husband,  while  in  a 
state  of  intoxication  caused  by  liquors  obtained  by  him  from  the 
defendant,  insulted  or  menaced  one  ]\IcGraw,  who  thereupon  stabbed 
him,  inflicting  a  wound  whereof  he  died  shortly  afterwards.  The  court 
held  that  the  plaintiff  w^as  not  entitled  to  recover  under  a  statute  which 
gave  a  wife  "who  shall  be  injured  in  person,  property  or  means  of 
support "  in  consequence  of  the  intoxication  of  any  person  "  a  right  of 
action  against  the  person  who  caused  the  intoxication,  and  made  such 
person  liable  for  all  damages  sustained  and  for  exemplary  damages." 
Mr.  Justice  Scholfield,  for  the  court,  said:  "It  has  also  been  held  that 
the  intervention  of  the  independent  act  of  a  third  person  between  the 
wrong  complained  of  and  the  injury  sustained,  which  was  the  direct  or 
immediate  cause  of  the  injury,  breaks  the  causal  connection;  and, 
consequently,  there  can,  in  such  case,  be  no  recovery  except  as  against 
the  person  whose  immediate  agency  produced  the  injury.  .  .  .  Here, 
the  death  not  resulting  from  intoxication  or  from  any  disease  induced 
or  aggravated  by  the  use  of  liquor,  but  solely  from  the  direct  and  wilful 
act  of  McGraw,  we  have  a  case  clearly  within  this  principle." 

In  the  case  before  us  the  intervening  act  produced  the  injury  com- 
plained of,  and  was  the  wrongful  act  of  a  third  person  for  which  he  was 
legally  responsible.  The  sale  and  consumption  of  the  liquor  may  have 
furnished  the  opportunity  or  occasion  for  the  wrongful  act  of  the  third 
person,  but  was  not  the  proximate  cause  of  the  injury.  Hence  the 
saloon  keeper,  who  sold  the  liquor  which  produced  the  intoxication, 
and  the  sureties  on  his  bond,  are  not  liable  for  damages.  Cuff  v. 
Newark  &  N.  Y.  R.  Co.,  35  N.  J.  L.  17. 

The  judgment  of  the  circuit  court  is  reversed  as  to  George  Sargiano- 
\ach,  the  keeper  of  the  saloon,  and  J.  Kempner  and  D.  Beffa,  the  sure- 
ties on  his  bond,  and  is  affirmed  as  to  Vincent  Gage. 


536  ROACH  V.   KELLY.  [CHAP.  IV. 


ROACH  V.  KELLY. 
Supreme  Court  of  Pennsylvania,  1899. 

[Reported  194  Pa.  24.] 

Dean,  J.^  .  .  .  There  are  many  cases  where  the  question  of  remote 
or  proximate  cause  is  for  the  jury,  but  this  is  not  one  of  them.  The 
facts  are  undisputed;  deceased  had  an  old  grudge  against  Atkinson; 
when  heated  by  liquor  he  revived  the  old  quarrel;  in  gratification  of 
his  ill  will  he  also  picked  a  quarrel  with  Pratt,  the  father-in-Jaw  of  the 
man  he  hated ;  they  proceeded  some  distance  to  private  property  and 
fought;  Roach  defeated  Pratt,  then  attacked  Atkinson;  while  engaged 
in  this  second  flagrant  breach  of  the  peace  the  cry  of  police  is  raised, 
and  all,  both  the  drunk  and  sober,  fled;  Roach,  by  the  concurring  cir- 
cumstances of  the  slip  on  the  bank  and  the  fall  into  the  open  sewer,  was 
killed.  Admit  that  his  resentment  on  account  of  the  old  grudge  and 
his  quarrelsomeness  were  prompted  by  the  liquor  and  resulted  in  the 
fight;  he  received  no  injury  in  that  consequence  of  defendant's  act; 
the  direct  effect  of  the  liquor  ended  with  the  fight;  in  a  subsequent 
attempt,  however,  to  escape  arrest  for  a  \'iolation  of  law  he  met  his 
death ;  this  was  an  intermediate  cause,  disconnected  from  the  primary 
one,  for  which,  under  no  view  of  the  facts,  was  defendant  responsible. 
If  Roach  in  his  flight  had  been  arrested  by  the  officers,  and  in  a  scuffle 
to  escape  from  them  had  met  his  death,  it  might  as  well  have  been 
argued  the  proximate  cause  of  his  death  was  the  unlawful  sale  of 
liquor,  yet  it  is  too  plain  for  argument  that  the  resistance  to  the  offi- 
cers was  the  proximate  and  effective  intervening  cause,  while  at  most 
the  sale  of  liquor  was  the  very  remote  cause.^ 

The  statute  on  which  this  suit  is  founded  imposes  no  higher  degree 
of  responsibility  on  the  liquor  dealer  than  the  common  law  imposes 
upon  wrongdoers.  It  declares  he  "  shall  be  held  civilly  responsible  for 
any  injury  to  person  or  property  in  consequence  of  such  furnishing." 
The  criminal  law  imposes  punishment  without  regard  to  the  conse- 
quences; the  civil  law  damages  only  for  the  natural  and  probable  con- 
sequences of  the  act.  It  might  be  plausibly  argued  that  defendant 
ought  to  have  so  far  foreseen  as  the  natural  and  probable  consequences 
of  his  act,  that  Roach  might  have  a  deadly  fall  on  the  highway  when 
going  to  his  home,  or  that  his  death  might  result  from  being  run  down 
by  cars  while  crossing  a  railroad  track,  or  by  falling  into  water  and 
drowning,  or  possibly  by  exciting  his  quarrelsome  disposition  his  death 
might  have  come  from  a  blow  inflicted  by  some  insulted  antagonist, 

1  Part  of  the  opinion  is  omitted.  —  Ed. 

^  The  court  here  quoted  from  the  following  cases:  Hoag  v.  R.  R.,  85  Pa.  293; 
Morrison  v.  Davis,  20  Pa.  171.  —  Ed. 


SECT.  III.]  CUREIER   V.   McKEE.  537 

but  that  he  should  quarrel  with  Pratt,  proceed  deliberately  through  a 
tunnel  to  a  private  lot  on  the  opposite  side  of  a  railway,  leisurely  cast 
off  his  clothing,  fight  with  Pratt  and  beat  him,  then  engage  with  At- 
kinson, then,  in  terror  of  the  law  which  he  had  violated,  flee  from  the 
officers,  slip  down  the  steep  bank  he  was  striving  to  climb,  fall  into  an 
open  sewer  hole  negligently  unguarded  on  a  private  lot,  and  thus  break 
his  neck,  surely  this  was  neither  the  natural  nor  probable  consequence 
of  giving  him  drink.  The  alleged  cause  is  so  remote  from  the  injury 
that  the  learned  judge  ought  to  have  said  peremptorily  that  there  could 
be  no  recovery. 
The  judgment  is  reversed  and  judgment  is  entered  for  defendant. 


CURRIER  V.   McKEE. 
Supreme  Judicial  Court  of  Maine,  1904. 

[Reported  99  Me.  3G4.] 

Powers,  J.  This  is  an  action  under  the  civil  damage  act,  and  comes 
to  the  law  court  on  exceptions  to  the  ruling  of  the  presiding  justice 
directing  a  nonsuit. 

There  was  evidence  tending  to  prove  that  the  plaintiff  lived  with 
her  son.  Will  A.  Currier,  aged  thirty-four,  upon  his  farm  and  was  de- 
pendent upon  him  for  her  support;  that  the  defendant  sold  intoxi- 
cating liquor  to  the  son  which  caused  his  intoxication;  that  while  so 
intoxicated  he  entered  the  store  of  one  Boulier  who  ordered  him  out 
of  the  store;  that  he  went  out  but  turned  and  tried  to  come  back  with 
the  intention  of  striking  at  Boulier  and  having  a  fight  with  him;  that 
he  did  strike  at  Boulier,  who  thereupon  struck  him  and  broke  his  jaw, 
by  reason  whereof  his  ability  to  labor  was  decreased  and  the  support 
whicn  he  afforded  his  mother  sensibly  diminished. 

The  defendant  contends  that  no  recovery  can  be  had  except  for  those 
injuries  of  which  the  intoxication  is  the  proximate  cause;  that  the 
independent  act  of  an  intelligent  and  responsible  human  beihg  inter- 
vened and  caused  the  broken  jaw  from  which  all  damage  to  the  plain- 
tiff resulted,  and  that  the  intoxication  was  therefore  the  remote,  and 
not  the  proximate  cause  of  the  injury. 

R.  S.  1883,  c.  27,  §  49,  —  now  R.  S.  1903,  c.  29,  §  58,  —  creates  a 
new  cause  of  action  unknown  to  the  common  law,  and  so  far  as  is 
material  reads  as  follows:  "Every  wife,  child,  parent,  guardian,  hus- 
band, or  other  person  who  is  injured  in  person,  property,  means  of 
support  or  otherwise,  by  any  intoxicated  person,  or  by  reason  of  the 
intoxication  of  any  person,  has  a  right  of  action  in  his  own  name 
against  anyone  who  by  selling  or  giving  any  intoxicating  liquors,  or 
otherwise,  has  caused  or  contributed  to  the  intoxication  of  such  per- 


538  CURRIER   V.    McKEE.  [CHAP.  IV. 

sons."  The  statute  is  aimed  at  the  suppression  of  a  great  evil,  and 
while  no  effort  should  be  made  by  a  forced  interpretation  to  extend  its 
meaning  beyond  what  was  fairly  intended,  it  should  be  liberally  con- 
strued so  as  to  effect  the  beneficent  purpose  for  which  it  was  enacted. 
In  its  terms  it  is  very  broad.  It  is  not  confined  to  unlawful  sales  as 
was  the  original  act  of  1858,  c.  33,  §  11,  R.  S.  1871,  c.  27,  §  32,  which 
was  repealed  by  the  public  laws  of  1872,  c.  63,  §  4,  and  the  present 
statute  substituted.  The  giver  equally  with  the  seller  is  made  liable 
for  the  injurious  consequences  of  his  act.  It  is  not  necessary  that  the 
intoxicating  liquor  furnished  by  the  person  sued  should  have  been  the 
sole  cause  of  the  intoxication;  it  is  sufficient  if  it  "contributed"  to 
it  in  an  appreciable  degree.  A  right  of  recovery  is  given  for  injuries 
produced  in  two  ways,  first,  "by  any  intoxicated  person,"  and  second, 
"by  reason  of  the  intoxication  of  any  person."  When  the  injury  is 
caused  by  an  intoxicated  person,  it  need  not  be  shown  that  the  intoxica- 
tion caused  the  injurious  act.  In  such  case  it  is  sufficient  if  while  in 
a  state  of  intoxication,  to  which  liquors  furnished  by  the  defendant 
contributed,  such  intoxicated  person  commits  the  act  which  results 
in  injury  to  the  "person,  property,  means  of  support  or  otherwise"  of 
the  plaintiff.  The  furnishing  by  the  defendant  of  the  intoxicating 
liquor  must  have  contributed  as  a  proximate  cause  to  the  intoxication, 
and  the  act  of  the  intoxicated  person  must  have  been  the  cause  of  the 
injury,  but  it  is  not  necessary  that  the  intoxication  should  have  been 
the  proximate  cause  of  injury  or  of  the  act  which  caused  it.  Neu  v. 
McKechnie  et  al,  95  N.  Y.  632;  Brockway  v.  Patterson,  72  Mich.  122. 
The  legislature  seems  to  have  regarded  intoxicating  liquor  as  dangerous 
to  society,  and  to  have  intended  that  whoever  by  furnishing  liquor 
contributed  to  the  intoxication  of  any  person  should  be  held  respon- 
sible for  injuries  inflicted  by  him  while  in  that  condition,  without  plac- 
ing upon  the  sufferer  the  burden  of  showing  that  the  injury  was  due 
to  the  intoxication. 

This,  however,  is  but  to  show  the  scope  of  the  statute  and  that  it 
should  be  construed  in  no  narrow  or  illiberal  spirit.  The  plaintiff 
claims  that  she  was  injured  in  her  means  of  support  not  by  an  intoxi- 
cated person,  but  "by  reason  of  the  intoxication"  of  her  son. 

If  this  pro\asion  is  to  be  regarded  as  calling  for  the  same  sequence 
and  connection  of  causation  required  Iw  the  maxim  of  the  common 
law  which  the  defendant  invokes,  that  the  law  looks  to  the  proximate 
and  not  to  the  remote  cause,  the  oft  embarrassing  question  remains 
of  what  is  a  proximate  and  effective  although  not  the  immediate 
cause  of  the  injury.  Giving  to  the  defendant  the  full  benefit  of  the 
application  of  the  principle  which  he  claims,  still  the  statute  does  not 
require  that  the  furnishing  of  the  liquor  by  the  defendant  should  be 
the  proximate  cause  of  the  plaintiff's  injury,  but  only  that  it  should 
have  contributed  to  her  son's  intoxication  and  that  the  intoxication 
should  have  been  the  proximate  cause  of  the  injury.     It  is  urged 


SECT.  III.]  CUKRIER   V.    McKEE.  539 

that  the  act  of  an  inteUigent  and  responsible  human  being,  the  blow 
struck  by  Boulier,  intervened  between  the  intoxication  of  the  son  and 
the  resulting  injury  to  the  plaintiff.  Upon  the  evidence,  however, 
the  jury  might  have  found  that  the  illegal  sales  of  intoxicating  liquor 
by  the  defendant  to  the  plaintiff's  son  caused  his  intoxication,  and  that 
his  intoxication  caused  him  to  make  an  assault  upon  Boulier,  and  that 
the  blow  of  the  latter  was  solely  in  self  defense  when  struck  at  by  the 
intoxicated  son.  If  so,  the  intervention  of  Boulier  was  rightful.  It 
is  the  wrongful  or  negligent  act  of  a  third  party  intervening  which 
breaks  the  chain  of  causation  and  relieves  the  original  wrongdoer  of 
the  consequences  of  his  wrongful  act;  but  if  in  the  right  he  is  not  re- 
sponsible and  the  party  injured  must  seek  reparation  from  him  whose 
wrongful  act  was  the  first  in  the  order  of  events  causing  the  injury. 

A  reference  to  some  of  the  authorities  will  show  that  this  principle 
has  been  frequently  recognized  ever  since  the  squib  case,  Scott  v. 
Shepard,  3  Wilson,  403,  and  also  the  liberal  manner  in  which  statutes, 
giving  a  right  of  recovery  for  injuries  to  person,  property,  or  means 
of  support  "in  consequence  of"  or  "by  reason  of  the  intoxication  of 
any  person,"  have  been  construed. 

It  is  a  principle  of  law,  applicable  to  the  doctrine  of  proximate  cause, 
that  "if  the  original  act  was  wrongful  and  would  naturally  accord- 
ing to  the  ordinary  course  of  events  prove  injurious  to  some  other 
person  or  persons,  and  does  actually  result  in  injury  through  the  in- 
tervention of  other  causes  which  are  not  wrongful,  the  injury  shall  be 
referred  to  the  wTongful  cause,  passing  by  those  which  are  innocent. 
But  if  the  original  wTong  only  becomes  injurious  in  consequence  of  the 
intervention  of  some  distinct  wrongful  act  or  omission  by  another,  the 
injury  shall  be  imputed  to  the  last  wrong  as  a  proximate  cause,  and  not 
to  that  which  is  more  remote."    Cooley  on  Torts,  page  76. 

The  plaintiff's  son  was  struck  by  a  railroad  train  while  walking  upon 
thextrack  in  an  intoxicated  condition.  It  was  held  that,  the  railroad 
company  not  being  in  fault,  the  intoxication  might  be  found  to  be  the 
proximate  cause  of  the  injury.  "Men  are  held  liable  every  day  in 
tort  for  the  natural  and  proximate  results  of  their  WTongs,  although 
the  particular  result  could  not  be  foreseen  as  necessary  at  the  time  of 
the  act."    McNary  v.  Blackburn,  180  Mass.  141. 

In  Gage  v.  Harvey,  66  Ark.  68,  74  Am.  St.  R.  70,  an  intoxicated 
person  was  robbed  of  his  money,  and  the  person  selling  the  liquor  was 
held  not  liable.  "  The  intervening  act  produced  the  injury  complained 
of,  and  was  the  wrongful  act  of  a  third  person  for  which  he  was  legally 
responsible." 

In  Schmidt  v.  Mitchell,  84  111.  195,  it  was  held  that  if  a  person  in 
consequence  of  intoxication  should  get  into  a  difficulty  resulting  in 
his  being  shot  in  the  thigh,  the  party  selling  the  liquor  might  be 
responsible  for  the  direct  consequences  of  the  injury  received,  but 
that  if,  after  becoming  sober,  his  disregard  of  his  physician's  instruc- 


540  CURRIER   V.   McKEE.  [CHAP.  lY, 

tions  should  necessitate  the  amputation  of  his  leg,  the  liquor  seller 
would  not  be  responsible  for  the  loss  of  life.  There  the  wound  was  law- 
fully inflicted  by  one  Freidenback  in  defense  of  his  house.  Shugart 
V.  Egan,  83  111.  56,  is  sometimes  cited  in  support  of  a  contrary  doc- 
trine. There,  however,  the  plaintiff's  husband,  in  consequence  of 
mere  words  used  by  him  while  intoxicated,  was  assaulted  and  slain  by 
one  McGraw.  It  is  evident  that  mere  words  would  not  justify  the 
assault  and  that  McGraw  was  a  wrongdoer.  The  same  court,  com- 
menting upon  Shugart  v.  Egan,  in  a  later  case,  said :  "  It  was  there  said 
to  be  the  common  experience  of  mankind  that  the  condition  of  one 
intoxicated  invited  protection  against  violence  rather  than  attack, 
and  that  it  was  not  a  natural  and  probable  result  of  intoxication  that 
the  person  intoxicated  should  come  to  his  death  by  the  wilful  criminal 
act  of  a  third  party.  ...  It  was  not  the  intention  that  the  intoxicat- 
ing liquor  alone,  of  itself  exclusive  of  other  agency,  should  do  the  whole 
injury.  That  would  fall  quite  short  of  the  measure  of  remedy  intended 
to  be  given.  The  statute  was  designed  for  a  practical  end,  to  give  a 
substantial  remedy,  and  should  be  allowed  to  have  effect  according  to 
its  natural  and  obvious  meaning."  Schroden  v.  Crawford,  94  111.  357. 
Intoxication  was  held  to  be  the  prox-imate  cause  of  death  when  a  per- 
son Avas  drowned  in  bathing.  Meyer  v.  Butterbrodt,  146  111.  131. 
The  party  causing  intoxication  cannot  escape  liabiHty  because  he 
may  not  reasonably  have  foreseen  the  consequences.  Roth  v.  Eppy, 
80  111.  283,  a  case  of  insanity  caused  by  habitual  intoxication.  Plain- 
tiff's husband  while  intoxicated  made  an  assault  upon  one  Morceau 
by  whom  he  was  killed.  Held  that  defendant  would  be  liable  on  ac- 
count of  the  sale  and  intoxication  resulting  from  such  sale  if  such  in- 
toxication was  the  effective  cause  of  the  injury.  Baker  &  Reddick  ». 
Summers,  201  111.  52. 

The  leg  of  plaintiff's  husband  was  broken  by  one  Free,  in  a  drunken 
scuffle.  Both  the  husband  and  Free  were  intoxicated  at  the  time  by 
liquor  sold  by  the  defendant.  In  affirming  a  verdict  for  the  plaintiff, 
the  court  said:  "If  the  injury  was  occasioned  by  reason  of  the  in- 
toxication of  Thomas  or  Free,  and  such  intoxication  was  produced,  in 
whole  or  in  part,  by  the  liquors  sold  by  the  defendant  Dansby,  then  the 
case  would  fall  within  the  terms  of  the  statute,  and  a  recovery  could 
be  had  if  the  plaintiff  by  reason  thereof  was  injured  in  her  means  of 
support."  Thomas  v.  Dansby,  74  Mich.  398.  A  conviction  of  drunken- 
ness has  been  held  a  proximate  result  of  intoxication  such  as  will  render 
the  one  furnishing  the  liquor  liable  to  the  wife  for  injuries  resulting 
therefrom.    Lucher  v.  Liske,  111  Mich.  683. 

The  question  of  proximate  cause  is  for  the  jury  under  appropriate 
instructions  of  law.  One  is  not  bound  to  anticipate  what  is  merely 
possible,  nor  on  the  other  hand  is  he  liable  for  such  consequences  only 
as  usually  follow.  It  is  sufficient  if  the  result  ought  to  have  been 
apprehended  according  to  the  usual  experience  of  mankind. 


SECT.  III.]  MINOT   V.   DOHERTY.  541 

The  defendant  need  not  have  intended  that  the  plaintiff's  son  should 
make  an  assault  upon  Boulier  or  even  have  expected  it  or  the  injury 
which  followed.  Enough  if  according  to  human  experience  it  was  to 
be  apprehended  that  such  results  were  Hkely  to  happen  from  the  in- 
toxication. The  legislature  deals  with  intoxicating  liquor  upon  the 
assumption  that  it  is  the  enemy  of  society,  that  intoxication  weakens 
the  will,  disturbs  the  judgment,  saps  the  moral  forces,  and  is  the  fruit- 
ful source  of  vice  and  crime  attended  by  personal  injury  and  loss.  It 
is  natural  as  well  as  lawful  that  one  assaulted  should  use  reasonable 
force  to  repel  the  assailant  even  to  his  personal  injury.  It  is  for  the 
jury  to  say  who  is  the  assailant,  and  whether,  under  the  circum- 
stances, the  force  used  was  reasonable  and  appropriate.  It  is  also 
for  them  to  determine  whether  one,  who  lets  loose  such  a  dangerous 
agent  as  intoxicating  liquor,  is  not  bound  to  apprehend  that  the  in- 
toxication thereby  produced  is  likely  to  cause  unjustifiable  assaults 
and  consequent  injury  to  the  assailant. 

In  the  case  at  bar  there  was  evidence  tending  to  show  that  the  in- 
toxicating liquor  sold  by  the  defendant  caused  the  intoxication  of  the 
plaintiff's  son,  that  by  reason  of  such  intoxication  he  made  an  assault 
upon  Boulier,  and  that  the  latter  acting  in  self  defense  struck  the  blow 
which  diminished  the  son's  capacity  to  labor,  resulting  in  injury  to  the 
plaintiff's  means  of  support.  If  these  issues  are  found  in  the  affirmative, 
then,  under  the  broad  and  sweeping  provisions  of  the  statute  we  are 
considering,  we  think  it  may  be  said  that  the  plaintiff  was  injured  in 
her  means  of  support  "by  reason  of  the  intoxication"  of  her  son.  The 
court  cannot  say  that  the  intoxication  would  not  then  be  the  "one 
efficient  procuring  cause  without  which  the  injury  would  not  have 
happened."  Oilman  v.  E.  &  N.  A.  Ry.  Co.,  60  Maine,  235.  The 
case  should  have  been  submitted  to  the  jury. 

Exceptions  sustained. 


MINOT  V.  DOHERTY. 
Supreme  Judicial  Court  of  Massachusetts,  1909. 

[Reported  203  Mass.  37.] 

Tort  under  R.  L.  c.  100,  §  58,  by  a  married  woman  against  the 
proprietor  of  a  bar  room  for  personal  injuries,  resulting  in  an  alleged 
miscarriage,  from  an  assault  upon  the  plaintiff  by  her  husband  in 
consequence  of  intoxication  caused  by  liquor  sold  to  him  by  the  de- 
fendant.   Writ  dated  November  8,  1905. 

In  the  Superior  Court  the  case  was  tried  before  Stevens,  J.  At  the 
close  of  the  evidence  the  defendant  asked  the  judge  to  give  certain 
instructions  to  the  jury,  among  which  were  the  following: 


542  MINOT   V.    DOHERTY.  [CHAP.  IV. 

"8.  There  is  no  evidence  that  the  alleged  miscarriage  was  suf- 
fered in  consequence  of  the  intoxication  of  the  plaintiff's  husband 
caused  in  whole  or  in  part  by  liquor  sold  or  given  him  by  the  defend- 
ant." 

"11.  The  jury  cannot  consider  the  plaintiff's  pain  in  labor  at  the 
time  of  the  alleged  miscarriage  as  an  element  of  damage,  as  there  is 
no  evidence  that  such  pain  was  more  aggravated  than  would  ultimately 
and  naturally  result  from  her  pregnancy." 

The  judge  refused  to  give  these  instructions,  and  submitted  the  case 
to  the  jury  with  instructions  which  are  described  in  the  opinion. 

The  jury  returned  a  verdict  for  the  plaintiff  in  the  sum  of  $1,500; 
and  the  defendant  alleged  exceptions  to  the  judge's  refusal  to  give 
the  eighth  and  the  eleventh  instructions  requested  by  the  defendant, 
and  to  "  that  portion  of  the  charge  relating  to  the  defendant's  liability, 
if  the  plaintiff's  husband  was  a  confirmed  and  habitual  drunkard  and 
his  confirmed  habits  were  continued  in  whole  or  in  part  by  liquor 
supplied  by  the  defendant." 

LoRiNG,  J.  1.  The  defendant  urges  in  support  of  his  exception  to 
the  refusal  of  the  judge  to  give  the  eighth  ruling  asked  for  that  "the 
defendant  would  not  be  liable  if  an  habitual  drunkard,  to  the  forma- 
tion of  whose  habits  of  intoxication  the  defendant  had  in  whole  or  in 
part  contributed,  committed  an  assault  while  perfectly  sober."  That 
is  true.  That  was  decided  to  be  law  in  Bryant  v.  Tidgewell,  133  Mass. 
86.  But  it  was  laid  down  in  that  case  that  if  a  man  who  is  habitually 
drunk  for  a  specified  period  assaults  his  wife  at  that  time,  a  defendant 
who  by  selling  him  liquor  had  caused  that  drunkenness  in  whole  or  in 
part  would  be  liable  if  his  intoxication  at  that  time  was  the  cause  of 
the  assault.  That  case  established  the  distinction  between  causing  a 
husband  to  form  habits  of  drunkenness  by  selling  liquor  to  him  and 
causing  him  to  be  habitually  drunk  during  a  specified  period  by  selling 
liquor  to  him. 

The  defendant  has  also  argued  that  there  was  no  e\adence  that  the 
husband  was  in  fact  intoxicated  at  the  time  of  the  assault.  But  we 
are  of  opinion  that  from  the  e\ddence  set  forth  in  the  bill  of  exceptions 
the  jury  were  warranted  in  finding  that  he  was  intoxicated  at  that 
time.  Moreover  the  bill  of  exceptions  does  not  purport  to  set  forth 
all  the  evidence.  Further,  although  the  whole  charge  is  not  given,  it 
aflSrmatively  appears  that  the  presiding  judge  instructed  the  jury 
that  they  must  find  that  fact.  He  told  them  that  he  had  been  asked 
to  give  them  this  instruction:  "The  burden  is  upon  the  plaintiff  to 
show  that  the  intoxication  of  the  husband  at  the  time  it  is  alleged 
that  he  struck  and  injured  her  was  caused  in  whole  or  in  part  by  liquors 
sold  or  given  him  by  the  defendant."  As  to  this  he  told  the  jury: 
"  I  have  already  given  you  that  and  I  repeat  it." 

2.  In  explaining  to  the  jury  that  the  defendant  would  not  be  liable 
for  habits  of  intoxication  formed  by  the  husband  before  any  liquor 


SECT.  IV.]  BLAKE   V.    HEAD.  543 

was  sold  to  him  by  the  defendant,  the  judge  said  that  he  would  be 
liable  if  "  those  habits  were  continued  afterwards  and  were  continued 
afterwards  on  account  of  the  acts  of  the  defendant  in  selling  him  liquor 
in  whole  or  in  part."  If  this  had  stood  alone  the  charge  would  have 
been  erroneous  for  the  same  reason  that  the  charge  in  Bryant  v.  Tidge- 
well,  133  Mass.  86,  was  held  to  be  wrong.  But  this  was  an  inaccurate 
statement  used  by  the  judge  in  pointing  out  that  the  defendant  was 
not  liable  if  the  husband  had  become  addicted  to  drunkenness  before 
any  liquor  was  sold  to  him  by  the  defendant.  When  the  judge  later 
on  in  his  charge  instructed  the  jury  as  to  what  they  must  find  to  bring 
in  a  verdict  for  the  plaintiff,  this  inaccuracy  was  cured.  They  were 
then  told  in  substance  that  they  must  find  that  the  assault  was  caused 
by  his  being  in  a  state  of  habitual  drunkenness  at  the  time,  and  that 
this  state  of  habitual  drunkenness  had  been  caused  in  whole  or  in  part 
by  liquor  sold  by  the  defendant. 

3.  The  eleventh  request  could  not  be  given.  The  pain  in  labor  of 
a  woman,  who  by  reason  of  an  assault  and  battery  upon  her  brings  forth 
a  dead  child  when  she  is  seven  months  gone  in  pregnancy,  may  be 
found  to  be  greater  than  the  pain  in  labor  of  a  woman  "who  remem- 
bereth  no  more  her  anguish  for  joy  that  a  man  is  born  into  the  world." 

Exceptions  overruled. 


^ 


SECTION   IV. 

Workmen's  Compensation  Acts. 

BLAKE  V.   HEAD. 
Court  of  Appeal,  1912. 

[Reported  5  B.  W.  C.  C.  30.3.] 


Cozens-Hardy,  M.  R.  The  facts  were  that  the  boy  went  into  the 
ser\ice  of  Head  as  an  errand  boy  and  was  told  by  his  father  that  Head 
had  been  in  an  asylum,  and  that  he  was  to  be  a  good  boy  and  not  make 
his  employer  annoyed.  When  the  boy  was  doing  some  work  under  the 
direction  of  Mrs.  Head,  he  was  attacked  by  Head  \\ath  a  chopper  and 
was  severely  injured,  sustaining  a  fractured  skull.  It  was  a  lament- 
able affair.  Head  must  be  taken  to  be  a  sane  person,  as  he  had  been 
discharged  shortly  before  from  an  asylum.  It  was  said  the  boy  could 
claim  compensation  because  this  accident  arose  out  of  and  in  the  course 
of  his  employment.  Personally,  I  do  not  think  this  was  an  "accident" 
at  all.  I  think  it  was  an  intentional  felonious  act,  and  the  injury  cer- 
tainly did  not  arise  out  of  the  emplo^-ment.  If  the  applicant  had  been 
an  attendant  in  a  lunatic  asylum,  and  had  been  attacked  by  one  of  the 


544  BUTLER    V.   BURTON-ON-TRENT    UNION.  [CHAP.  IV. 

patients,  there  would  have  been  very  good  ground  for  saying  that  there 
was  an  accident  arising  out  of  his  employment  as  being  a  risk  inci- 
dental to  the  employment.  But  that  is  not  the  case  here.  I  cannot 
think  why  the  unfortunate  boy  did  not  bring  an  action  for  assault. 
I  do  not  think  it  was  an  accident,  or  that  the  injury  arose  out  of  and 
in  the  course  of  employment. 

Fletcher  Moulton,  L.  J.  I  am  extremely  sorry  for  the  boy; 
but  I  agree  that  the  appeal  must  be  dismissed. 

Buckley,  L.  J.  A  felonious  act  done  by  the  employer  cannot  by  any 
possible  straining  of  language  be  called  an  accident  arising  out  of  and 
in  the  course  of  the  emplo>Tnent.    I  agree  in  thinking  this  appeal  fails. 

Appeal  dismissed. 


BUTLER  V.  BURTON-ON-TRENT  UNION. 

Court  of  Appeal,  1912. 

[Reported  5  B.  W.  C.  C.  355.] 

Cozens-Hardy,  M.  R.  This  is  an  appeal  from  Judge  Lindley, 
who  has  given  us  an  elaborate  judgment.  The  facts  are  plain  and 
not  in  dispute.  The  deceased  man  was  master  of  a  workhouse.  He 
was  on  duty  continuously  until  ten  o'clock  at  night,  but  he  had  no 
active  duties  at  the  time  in  question.  It  was  a  summer  evening.  He 
was  sitting  smoking  at  the  top  of  some  stairs  leading  up  to  that  part 
of  the  workhouse  where  his  own  private  rooms  were.  It  is  not  sug- 
gested that  there  was  anything  peculiar  in  these  stairs.  The  labor- 
master  happened  to  pass  that  way,  and  he  was  having  a  talk  with  him 
about  workhouse  matters.  Unfortunately,  the  master  of  the  work- 
house had  tubercular  trouble.  A  fit  of  coughing  came  on,  and  made 
him  giddy.  He  turned  round,  and  fell  down  the  steps,  and  it  was  found 
that  one  of  his  ribs  was  broken,  and  he  died  of  pneumonia  some  days 
after.  The  judge  has  found  this  was  an  accident  in  the  course  of  the 
emplojTnent.  The  then  question  is,  Did  it  arise  out  of  the  emplovTnent? 
Mr.  Parfitt  says  it  "arose  out  of"  because  it  took  place  on  premises 
where  he  was  in  fact  engaged.  If  that  view  is  right,  it  makes  "  in  the 
course  of"  the  sole  test.  It  has  been  decided  that  an  accident  "arising 
out  of"  means  some  risk  reasonably  incidental  to  the  employment; 
that  the  man  is  more  exposed  to  the  particular  risk  than  other  persons 
of  the  community.  Mr.  Parfitt  admits  that  if  the  master  had  been 
engaged  in  his  office  and  this  fit  of  coughing  had  come  on,  the  accident 
would  be  in  no  sense  one  arising  out  of  the  employment.  There  is 
nothing  peculiar  in  the  employment  which  renders  the  risk  greater 
than  that  to  which  ordinary  persons  are  exposed.  It  is  not  as  though 
the  task  was  likely  to  render  the  cough  more  frequent  and  more  dan- 


SECT.  IV.]  EVERITT   V.   EASTAFF   &   CO.  545 

gerous.  I  cannot  imagine  a  quieter  occupation  than  this  man  had. 
In  these  circumstances,  I  think  we  should  be  extending  the  provisions 
of  this  Act  beyond  all  reason,  beyond  all  principle,  beyond  all  authority, 
if  we  held  that  this  accident  arose  out  of  the  employment. 

Fletcher  Moulton,  L.  J.,  agreed. 

Buckley,  L.  J.  The  place  was  not  a  dangerous  place;  the  man  was 
neither  more  nor  less  liable  to  fall  because  he  was  a  workhouse  master. 
These  considerations  are  sufficient.  The  accident  did  not  arise  out  of 
the  employment  in  the  sense  that  it  was  due  to  the  nature  of  the  em- 
plo^-ment,  or  to  anything  to  which  the  employment  required  him  to 
expose  himself. 

Appeal  allowed. 


EVERITT  V.   EASTAFF  &  CO. 

Court  of  Appeal,  1913. 

[Reported  6  B.  W.  C.  C.  184.] 

Cozens-Hardy,  M.  R.  This  case  has  been  most  strenuously  argued 
by  Mr.  Lort-Williams  on  behalf  of  the  dependents  of  the  dead  man. 
He  certainly  has  said  all  that  possibly  could  be  said  for  his  clients,  but, 
nevertheless,  I  cannot  bring  myself  to  agree  with  his  contention,  for 
I  do  not  think  there  is  any  substance  in  the  appeal.  The  deceased  man 
was  a  carter,  and  the  facts  as  found  by  the  learned  judge  were  in  sub- 
stance these:  The  man  was  employed  on  the  day  of  the  accident  to 
take  a  load  of  sand  in  his  cart  from  the  Midland  Railway  depot  — 
which  we  are  told  is  near  the  Midland  station  at  Luton  —  to  a  place 
in  the  Selbourne  Road,  some  little  distance  away.  It  was  part  of  his 
duty  after  he  had  got  rid  of  his  load  to  take  his  horse  and  cart  back  to 
the  stables  at  twelve  o'clock,  which  was  the  men's  dinner  hour.  He  had 
been  with  his  load  to  Selbourne  Road,  but  instead  of  going  back  to  the 
stables  by  the  way  he  had  come,  which  was  the  nearest  and  reasonable 
and  natural  route  for  him  to  take,  he  went  where  he  had  no  business 
to  go,  by  a  route  which  was  a  little  way  farther  round,  but  which 
took  him  back  to  the  stables,  passing  by  the  Great  Northern  Railway 
station.  By  this  route  he  passed  a  public-house  called  the  "Fox  Inn," 
where  he  stopped.  We  do  not  know  exactly  when  he  got  there.  One 
witness  said  he  saw  the  cart  standing  there  at  11.30,  and  another  that 
he  noticed  the  cart  there  when  he  passed  at  11.40;  the  publican  said 
that  about  twelve  o'clock  the  man  came  into  the  bar  and  had  one  glass 
of  ale,  and  that  he  noticed  that  the  horse  and  cart  were  standing  out- 
side on  the  draw-up.  It  was  argued  by  Mr.  Lort-Williams  that  we 
must  not  infer  from  this  evidence  that  the  man  was  there  drinking 
at  the  public-house  all  the  time.    And  so  far,  I  agree  with  him.    But 


546  EVEEITT    V.    EASTAFF    <k    CO.  [CHAP.  IV. 

the  man  seems,  however,  to  have  been  loitering  over  his  work  all  that 
day,  for  he  did  only  two  instead  of  four  journeys  that  morning,  accord- 
ing to  his  day-sheet.  However  that  may  be,  we  know  this,  that  when 
he  came  out  of  the  public-house,  after  getting  his  drink,  he  got  up  on  to 
the  cart  and  something  startled  the  horse;  he  began  to  trot,  and  then 
ran  away  towards  his  stable.  The  man,  who  had  the  reins  in  his  hands, 
was  thrown  out  of  the  cart  and  killed.  The  judge  found  that  the 
route  which  the  man  took  back  from  Selbourne  Road  was  not  the 
nearest  way  the  man  could  take  to  get  back  to  the  stables,  and  was  not 
the  ordinary  or  usual  route  there.  And  he  held  "  that  the  accident  did 
not  arise  out  of  and  in  the  course  of  the  man's  employment.  That  that 
employment  was  to  cart  as  alleged ;  that  the  deceased  went  to  the  Fox 
Inn  for  his  own  purposes;  that  the  accident  happened  on  a  road  a  few 
yards  from  the  Fox  Inn,  where  his  employment  did  not  reasonably 
or  naturally  take  him  with  his  cart,  and  upon  the  evidence  I  so  decide; 
nor  do  I  think  that  the  getting  into  the  cart  again  after  the  Fox  Inn 
visit  continued  his  employment  (as  Mr.  Lort-Williams  contended), 
so  as  to  make  the  respondents  hable." 

Now,  the  very  ingenious  argument  addressed  to  us  on  behalf  of  the 
appellant  was,  in  effect,  this:  The  deceased  man  was  a  carter,  and 
therefore  his  duty  was  to  take  care  of  his  master's  horse  and  cart. 
However  long,  therefore,  he  may  have  been  getting  back,  if  he  deviated 
from  the  ordinary  route  on  an  excursion  for  his  own  purpose  —  if, 
for  example,  to  use  the  illustration  put  by  Buckley,  L.  J.,  to  Mr.  Lort- 
Williams  during  the  argument,  the  man  had  gone  off  to  see  a  football 
match  —  so  long  as  he  took  the  horse  and  cart  with  him,  any  accident 
which  happened  to  him  while  dri\ang  the  horse  back  to  the  yard  would 
be  an  accident  arising  out  of  and  in  the  course  of  his  employment.  It 
was  argued  that  taking  the  horse  back  to  the  yard  was  part  of  his 
duty,  and  the  accident  happened  in  the  performance  of  that  duty, 
and  therefore  the  employers  were  liable.  I  cannot  in  the  least  accept 
that  argument  as  sound.  I  cannot  tliink  that  a  man  is  within  the  pro- 
tection of  tlie  Act  when  making  an  excursion  solely  for  his  own  pleas- 
ure. I  think  it  is  immaterial  to  consider  whether  he  remained  at  the 
Fox  Inn  for  twenty  minutes  or  half  an  hour.  It  did  not  matter  in  the 
least.  The  man  for  his  owm  purpose  had  chosen  to  take  a  route  home 
which  was  unauthorized,  and  that  prevented  the  accident  from  arising 
out  of  and  in  the  course  of  the  man's  employment  within  the  meaning 
of  the  Act. 

Buckley  and  Hamilton,  L.  J  J.,  concurred. 

Appeal  dismissed. 


SECT.  IV.]  M'LAUCHLAN    V.  ANDERSON.  547 


M'LAUCHLAN  v.  ANDERSON. 

Court  of  Session,  Scotland,  1911. 

[Reported  4B.W.C.C.  376.] 

The  facts  in  this  case  are  as  follows:  The  deceased  was  engaged  as 
a  laborer  in  connection  with  loading  at  various  quarries  wagons 
which  were  afterwards  hauled  by  a  traction  engine  over  the  roads  of 
Banffshire  to  Portsoy.  The  deceased's  main  duties  were  to  help  at 
the  loading  and  unloading  and  to  accompany  the  wagons  on  their 
journeys.  On  the  occasion  of  his  death  he  was  sitting  on  one  of  the 
wagons  which  was  being  hauled  by  the  engine  in  the  prosecution  of 
one  of  the  intermediate  journeys  from  one  quarry  to  another.  While 
sitting  on  the  wagon  he  dropped  his  pipe  and  got  down  to  recover  it; 
in  so  doing  he  stumbled  and  fell,  and  was  run  over  by  the  wagon. 
The  arbitrator  found  as  a  fact  that  "the  deceased  Peter  M'Lauchlan 
attempted  to  get  down  from  the  wagon,  not  for  any  object  connected 
•with  his  employment  with  the  respondent,  but  for  his  own  purpose," 
and  proceeding  upon  that  found  in  law  that  the  dependent  was  not 
entitled  to  compensation  in  respect  that  the  accident  was  not  an 
accident  arising  out  of  his  employment  in  the  sense  of  the  Workman's 
Compensation  Act,  1906,  s.  1  (1). 

The  Lord  President  (after  stating  the  facts  as  above).  The  ques- 
tion before  your  Lordships  is  whether  the  finding  in  law  of  the  arbitrator 
can  be  supported,  in  view  of  the  various  facts  the  arbitrator  found  to 
be  proved,  which  I  have  detailed.  I  am  of  opinion  that  the  finding  can- 
not be  supported.  I  think  the  fallacy  that  has  led  the  learned  arbitra- 
tor astray  is  cormected  with  the  true  meaning  of  the  words  "his  owti 
purpose."  In  one  sense  anything  a  man  does  in  connection  with  his 
owt^  body  is  done  for  his  own  purpose  —  eating  and  drinking  are  illus- 
trations, but  these  are  none  the  less  things  a  workman  is  perfectly 
entitled  to  do  in  the  course  of  his  employment.  The  Lord  Chancellor 
(Lord  Loreburn)  in  the  course  of  his  opinion  in  the  case  of  Moore  v. 
Manchester  Liners,  Limited,  [1910]  A.  C.  498,  at  p.  500,  said  this: 
"  I  think  an  accident  befalls  a  '  man  in  the  course '  of  his  emplojTnent 
if  it  occurs  while  he  is  doing  what  a  man  so  employed  may  reasonably 
do  within  a  time  during  which  he  is  employed,  and  at  a  place  where  he 
may  reasonably  be  during  that  time  to  do  that  thing."  Now  this 
man's  operation  of  getting  down  from  the  wagon  to  recover  his  pipe 
seems  to  me  to  satisfy  all  those  conditions.  Taking  them  in  their  in- 
verse order,  he  had  a  right  to  be  at  the  place,  riding  on  or  walking  be- 
side the  wagons ;  he  was  wnthin  the  time  during  which  he  was  employed, 
because  the  accident  happened  during  the  actual  period  of  transit; 
and  he  was  doing  a  thing  which  a  man  while  working  may  reasonably 


548 


PLUMB    V.    COBDEN    FLOUR   MILLS   CO.,  LTD.         [CHAP.  IV. 


do  —  a  workman  of  his  sort  may  reasonably  smoke,  he  may  reasonably 
drop  his  pipe,  and  he  may  reasonably  pick  it  up  again. 

I  think  this  case  is  in  thorough  contrast  to  the  cases  which  were  cited 
to  your  Lordships  of  the  engine-driver  and  the  ticket-collector.  Each 
of  those  men  was  doing  something  which  was  not  incidental  to  his 
ordinary  work,  but  took  him  away  from  his  work  for  a  purpose  purely 
his  own  —  the  engine-driver  went  to  fetch  a  book,  and  the  ticket- 
collector  to  talk  to  a  lady  passenger. 

A  good  deal  has  been  said  about  the  difference  between  an  accident 
arising  "out  of"  and  one  arising  "in  the  course  of"  the  employment 
No  doubt  in  the  earlier  cases  under  the  Act  there  was  a  certain  amount 
of  difficulty  in  the  distinction,  but  my  view  on  the  matter  is  quite 
determined.  I  think  it  is  impossible  to  have  an  accident  arising  out 
of,  which  is  not  also  in  the  course  of  the  employment,  but  the  converse 
of  this  is  quite  possible,  as,  for  instance,  if  a  workman  were  shot  by  a 
lunatic,  or  struck  by  lightning,  while  at  the  moment  engaged  in  his 
work.  In  a  great  many  cases,  however,  the  two  phrases  do  not  admit 
of  separate  consideration,  and  the  present  is  one  of  those  cases.  If 
this  accident  took  place  in  the  course  of  the  workman's  employment,  it 
also  indubitably  arose  out  of  that  employment;  if  not,  not.  On  the 
whole  matter  I  propose  that  we  should  recall  the  finding  of  the  arbitra- 
tor and  find  the  widow  entitled  to  compensation.  The  other  Lords 
concurred. 

Appeal  allowed. 


PLUMB  V.   COBDEN  FLOUR  MILLS  CO.,  LTD. 

House  of  Lords,  1913. 
[Reported  [1914]  A.  C.  62.] 

Viscount  Haldane,  L.  C.  My  Lords,  in  this  case  I  have  had  the 
advantage  of  reading  the  judgment  prepared  by  my  noble  and  learned 
friend  Lord  Dunedin,  and  I  entirely  concur  in  it. 

Lord  Kinnear  desires  me  to  express  his  concurrence  also  in  the 
judgment  of  my  noble  and  learned  friend. 

Lord  Dunedin.  My  Lords,  I  have  not  the  slightest  doubt  as  to 
the  soundness  of  the  judgment  appealed  from.  As,  however,  we  had 
the  benefit  of  a  very  able  argument  and  a  copious  citation  of  authorities, 
it  may  be  of  use  to  formulate  the  conclusions  at  which  I  have  arrived. 

The  facts  of  the  case  are  simple.  The  appellant  was  a  foreman  worker 
in  the  employment  of  the  respondents,  and  his  duties  on  the  day  on 
which  he  was  injured  consisted  in  stacking  bundles  of  sacks  in  a  room 
in  the  respondents'  premises.  The  work  was  done  by  hand.  In  the 
room  in  which  this  was  being  done  there  ran  along  the  ceiling  a  shaft 


SECT.  IV.]  PLUMB    V.   COBDEN    FLOUR   MILLS   CO.,  LTD.  549 

which  transmitted  power  to  machines  in  other  rooms,  but  there  were 
no  pulleys  on  the  shaft  in  this  room,  and  it  was  not  used  in  connection 
with  any  machine  in  this  room.  The  stack  had  arrived  at  the  height 
of  about  seven  feet  and  the  bundles  could  no  longer  be  thrown  up  from 
the  bottom.  The  appellant,  who  was  on  the  top  of  the  stack,  then 
improvised  a  method  of  getting  up  the  sacks.  He  put  a  rope  round 
the  revolving  shafting,  attached  one  end  to  the  bundle,  and  sufficient 
tension  being  put  on  the  other  end  of  the  rope  to  ensure  friction,  the 
sack  was  drawn  up  as  by  a  crane.  A  bundle  of  sacks  was  drawn  too 
far  and  stuck  between  the  shafting  and  the  ceiling.  The  appellant,  to 
free  the  bundle,  cut  the  rope.  The  bundle  fell,  and  falling  on  the  bundle 
on  which  the  appellant  was  standing  caused  him  to  lose  his  balance. 
In  his  effort  to  recover  equilibrium  one  arm  got  entangled  with  the  rope 
which  was  round  the  shafting,  he  was  pulled  over  the  shafting,  and 
severely  injured. 

The  question  for  decision  is.  Did  the  accident  arise  out  of  his  em- 
ployment? 

The  Court  of  Appeal  held  that  it  did  not,  and  I  agree  with  them. 

It  is  well,  I  think,  in  considering  the  cases,  which  are  numerous,  to 
keep  steadily  in  mind  that  the  question  to  be  answered  is  always  the 
question  arising  upon  the  very  words  of  the  statute.  It  is  often  useful 
in  striving  to  test  the  fact  of  a  particular  case  to  express  the  test  in 
various  phrases.  But  such  phrases  are  merely  aids  to  solving  the 
original  question,  and  must  not  be  allowed  to  dislodge  the  original 
words.  Most  of  the  erroneous  arguments  which  are  put  before  the 
courts  in  this  branch  of  the  law  will  be  found  to  depend  on  disregard- 
ing this  salutary  rule.  A  test  embodied  in  a  certain  phrase  is  put  for- 
ward, and  only  put  forward,  by  a  judge  in  considering  the  facts  of  the 
case  before  him.  That  phrase  is  seized  on  and  treated  as  if  it  afforded 
a  conclusive  test  for  all  circumstances,  with  the  result  that  a  certain 
conclusion  is  plausibly  represented  as  resting  upon  authority,  which 
wou^  have  little  chance  of  being  accepted  if  tried  by  the  words  of  the 
statute  itself. 

Under  this  reservation,  I  propose  shortly  to  examine  some  of  the 
tests  which  have  been  found  useful  in  the  various  cases  which  have 
occurred  where  the  point  was  whether  or  not  the  accident  arose  out 
of  the  employment. 

The  first  and  most  useful  is  contained  in  the  expression  "scope"  or 
"sphere  of  employment."  The  expression  was  used  in  an  early  case, 
the  case  of  Whitehead  v.  Reader,  [1901]  2  K.  B.  48,  by  Collins,  L.  J., 
who  pointed  out  that  the  question  of  whether  a  servant  had  violated 
an  order  was  not  conclusive  of  whether  an  accident  so  caused  did  or 
did  not  arise  out  of  the  employment  and  put  as  the  test.  Did  the 
order  which  was  disobeyed  limit  the  sphere  of  the  employment,  or  was 
it  merely  a  direction  not  to  do  certain  things,  or  to  do  them  in  a  certain 
way  within  the  sphere  of  the  employment? 


550  PLUMB    V.   COBDEN   FLOUR   MILLS    CO.,  LTD.         [CHAP.  IV. 

In  the  case  of  Conway  v.  Pumpherston  Oil  Co.,  1911  S.  C.  660,  in 
the  Court  of  Session,  I  adopted  the  phrase  of  Collins,  L.  J.,  and  pointed 
out  that  there  were  two  sorts  of  ways  of  frequent  occurrence  in  which 
a  workman  might  go  outside  the  sphere  of  his  employment  —  the  first, 
when  he  did  work  which  he  was  not  engaged  to  perform,  and  the 
second,  when  he  went  into  a  territory  with  which  he  had  nothing  to 
do.  This  case  was  approved  and  followed  by  the  Court  of  Appeal  in 
Harding  v.  Brynddu  Colliery  Co.,  [1911]  2  K.  B.  747.  The  expression 
has  been  used  in  many  other  cases  which  it  would  be  tedious  and  un- 
necessary to  cite. 

I  am  of  opinion  that  this  test  is  both  sound  and  convenient,  but  it 
is  not  exhaustive,  and  it  is  not  the  most  convenient  for  every  state- 
ment of  facts.  Taken  as  it  is,  there  may,  and  often  will,  be  circum- 
stances in  which  the  application  may  be  difficult  and  opinions  may 
differ. 

I  pause  here  to  notice  an  ingenious  argument  proposed  by  Mr. 
Davenport,  founded  on  the  cases  I  have  cited.  Founding  on  the  cases 
of  Conway,  [1901]  2  K.  B.  48,  and  Harding,  [1911]  2  K  B.  747,  he 
said:  If  this  man  had  been  told  not  to  touch  this  shaft  he  would 
have  received  compensation,  for  he  was  doing  his  master's  work,  and 
it  would  have  been  merely  disobedience.  Why  should  he  be  worse 
off  because  he  was  told  nothing  about  the  shaft?  The  fallacy  of  this 
consists  in  not  adverting  to  the  fact  that  there  are  prohibitions  which 
limit  the  sphere  of  employment,  and  prohibitions  which  only  deal  \A'ith 
conduct  within  the  sphere  of  employment.  A  transgression  of  a  pro- 
hibition of  the  latter  class  leaves  the  sphere  of  employment  where  it 
was,  and  consequently  will  not  prevent  recovery  of  compensation.  A 
transgression  of  the  former  class  carries  with  it  the  result  that  the  man 
has  gone  outside  the  sphere. 

In  the  case  of  Barnes  v.  Nunnery  Colliery  Co.,  (1910)  4  B.  W.  C.  C. 
43;  [1912];  A.  C.  44,  Lord  Moulton  put  it  thus:  "The  boy  was  only 
guilty  of  disobedience.  Was  this  out  of  the  scop)e  of  his  emplovTnent, 
or  only  a  piece  of  misconduct  in  his  emplo\TTient?"  Though  Lord 
ISIoulton  arrived  at  a  different  result  on  the  facts  from  that  of  the 
majority  of  the  Court  of  Appeal,  and  that  of  this  House,  yet  no  fault 
is  to  be  found  with  the  question  as  put,  and  in  this  House  Lord  Lore- 
burn,  L.  C,  said  the  same  thing  in  other  words:  "Xor  can  you  deny 
him  compensation  on  the  ground  only  that  he  was  injured  through 
breaking  rules.  But  if  the  thing  he  does  imprudently  or  disobediently 
is  different  in  kind  from  anything  he  was  required  or  expected  to  do 
and  also  is  put  outside  the  range  of  his  ser\ace  by  a  genuine  pro- 
hibition, then  I  should  say  that  the  accidental  injury  did  not  arise 
out  of  his  employment."  The  Lord  Chancellor  there  put  the  test 
cumulatively,  because  that  fitted  the  facts  of  the  case  in  which  boys 
in  a  mine  rode  in  tubs,  a  thing  they  were  not  employed  to  do,  and 
which  they  had  been  expressly  told  not  to  do.    But  I  imagine  the  propo- 


SECT.  IV.]  PLUMB   V.    COBDEN    FLOUR    MILLS    CO.,  LTD.  551 

sition  is  equally  true  if  he  had  expressed  it  disjunctively  and  used  the 
word  "or"  instead  of  "also." 

In  the  cases  in  which  there  is  no  prohibition  to  deal  with,  the  sphere 
must  be  determined  upon  a  general  view  of  the  nature  of  the  employ- 
ment and  its  duties.  If  the  workman  was  doing  those  duties  he  was 
within,  if  not  he  was  without,  or,  to  use  my  own  words  in  the  case  of 
Kerr  v.  William  Baird  &  Co.,  1911  S.  C.  701,  an  accident  does  not 
arise  "out  of  the  employment"  if  at  the  time  the  workman  is  arrogat- 
ing to  himself  duties  which  he  was  neither  engaged  nor  entitled  to 
perform. 

As  I  have  already  said,  however,  the  question  of  within  or  without  the 
sphere  is  not  the  only  convenient  test.  There  are  others  which  are 
more  directly  useful  to  certain  classes  of  circumstances. 

One  of  these  has  been  frequently  phrased  interrogatively.  Was 
the  risk  one  reasonably  incidental  to  the  employment?  And  the 
question  may  be  further  amplified  according  as  we  consider  what  the 
workman  must  prove  to  show  that  a  risk  was  an  employment  risk,  or 
what  the  employer  must  prove  to  show  it  was  not  an  employment  risk. 

As  regards  the  first  branch,  I  think  the  point  is  very  accurately 
expressed  by  the  Master  of  the  Rolls  in  the  case  of  Craske  v.  Wigan, 
[1909]  2  K.  B.  635,  where  he  says:  "It  is  not  enough  for  the  applicant 
to  say  'The  accident  would  not  have  happened  if  I  had  not  been 
engaged  in  that  employment  or  if  I  had  not  been  in  that  particular 
place.'  He  must  go  further  and  must  say,  'The  accident  arose  because 
of  something  I  was  doing  in  the  course  of  my  emplo;yTnent  or  because 
I  was  exposed  by  the  nature  of  my  employment  to  some  peculiar 
danger.'" 

As  regards  the  second  branch,  a  risk  is  not  incidental  to  the  em- 
ployment when  either  it  is  not  due  to  the  nature  of  the  employment 
or  when  it  is  an  added  peril  due  to  the  conduct  of  the  servant  himself. 
Illustrations  of  the  first  proposition  will  be  found  in  all  the  cases  where 
the  ri^k  has  been  found  to  l)e  a  risk  common  to  all  mankind,  and  not 
accentuated  by  the  incidents  of  the  employment.  In  application  to 
facts  the  dividing  line  is  sometimes  very  nearly  approached,  but  I 
think  that  in  all  the  cases  the  principle  to  be  applied  has  been  rightly 
stated.  The  cases  themselves  are  too  numerous  to  cite,  but  I  may 
mention  as  illustrations  the  two  lightning  cases  of  Kelly  v.  Kerry 
County  Council,  (190S)  42  I.  L.  T.  R.  23,  and  Andrew  r.Failsworth 
Industrial  Society,  [1904]  2  K.  B.  32,  where  on  the  facts  the  stroke 
of  lightning  was  held,  in  the  Irish  case,  to  be  a  common  risk  of  all 
mankind;  in  the  English  case,  a  risk  to  which,  by  the  conditions  of 
employment,  the  workman  was  specially  exposed.  Both  these  cases, 
in  my  humble  judgment,  were  rightly  decided. 

An  illustration  of  the  second  proposition  will  be  found  in  the  case 
already  cited  of  Barnes  v.  Nunnery  Colliery  Co.,  [1912]  A.  C.  44,  at 
p.  50,  where  Lord  Atkinson  said:  "The  unfortunate  deceased  in  this 


552  PLUMB   V.    COBDEN    FLOUR   MILLS    CO.,  LTD.        [CHAP.  IV. 

case  lost  his  life  through  the  new  and  added  peril  to  which  by  his  own 
conduct  he  exposed  himself,  not  through  any  peril  which  his  contract 
of  serv-ice,  directly  or  indirectly,  involved  or  at  all  obliged  him  to  en- 
counter." Lord  Atkinson  added  the  words,  "It  was  not,  therefore, 
reasonably  incidental  to  his  employment.  That  is  the  crucial  test." 
In  the  case  of  Watkins  v.  Guest,  Keen  &  Xettlefolds,  5  B.  W.  C.  C. 
307,  Lord  Moulton  criticized  this  sentence  as  cutting  out  the  sub- 
section as  to  serious  and  wilful  misconduct.  With  great  deference  to 
my  noble  and  learned  friend,  I  think  he  was  forgetting  that  Lord 
Atkinson  was  only  applying  a  test,  and  not  substituting  it  for  the  words 
of  the  Act.  I  cannot  see  that  the  serious  and  wilful  misconduct  section 
really  introduces  any  difficulty.  Reverting  to  the  words  of  the  Act, 
you  have  first  to  show  that  the  accident  arises  out  of  the  emplo;yTnent. 
Then  in  the  older  Act  came  the  jider  that  even  when  that  was  so  the 
workman  still  could  not  recover  if  the  accident  was  due  to  the  serious 
and  wilful  misconduct  of  the  workman  himself  —  a  rider  limited  in  the 
later  Act  to  cases  where  the  injury  did  not  result  in  death  or  serious 
and  permanent  disablement.  But  the  very  fact  that  it  is  a  rider 
postulates  that  the  accident  is  of  the  class  which  arises  out  of  the 
employment.  A  man  may  commit  such  a  piece  of  serious  and  wilful 
misconduct  as  will  make  what  he  has  done  not  within  the  sphere  of 
his  employment.  But  if  death  ensues  and  his  dependents  fail  to  get 
compensation  it  will  not  be  because  he  was  guilty  of  serious  and  wilful 
misconduct,  but  because  the  thing  done,  irrespective  of  misconduct, 
was  a  thing  outside  the  scope  of  his  employment.  I  have  forborne  to 
comment  on  the  particular  application  to  the  facts  of  each  case  of  the 
principles  laid  down  in  them.  But,  in  view  of  what  has  been  said, 
I  think  I  must  add  that  in  my  \'iew  the  judgment  of  Buckley,  L.  J.,  who 
dissented  in  Watkins'  case,  5  B.  W.  C.  C.  307,  was  more  in  accord- 
ance with  what  had  been  laid  down  in  this  House  in  the  case  of 
Barnes  v.  Nunnery  Colliery  Co.,  [1912]  A.  C.  44,  than  the  judgment  of 
the  majority. 

Tried  by  either  of  the  two  tests  I  have  examined,  the  appellant  in 
this  case  seems  to  me  equally  to  fail.  But  he  does  fail,  not  because  he 
was  acting  outside  the  sphere  of  his  employment,  nor  because  by  his 
conduct  he  brought  on  himself  a  new  and  added  peril,  but  because  he 
has  failed  to  show  any  circumstances  which  could  justify  a  finding  that 
the  accident  to  him  arose  "out  of  his  employment." 

Lord  Atkinson.    My  Lords,  I  concur. 

Order  of  the  Court  of  Appeal  affirmed  and  appeal  dismissed. 


SECT.  IV.]      TRIM   JOINT   DISTRICT   SCHOOL   BOARD   V.   KELLY-.  553 


TRIM  JOINT  DISTRICT    SCHOOL  BOARD  MANAGEMENT 

V.  KELLY. 

House  of  Lords,  1914. 

[Reported  30  Times  L.  R.  453.] 

Appeal,  from  the  decision  of  the  Court  of  Appeal  in  Ireland. 
The  respondent  claimed  compensation  as  sole  dependent  for  the 
death  of  her  son.  The  son  was  employed  by  the  appellants  as  an 
assistant  master  in  the  Trim  District  School,  which  was  established  as 
a  school  for  training  children  of  the  Meath  and  other  union  workhouses 
in  industrial  pursuits.  It  was  his  duty  to  superintend  the  boys  in 
school  and  in  the  playground.  On  February  12,  1912,  the  boys,  who 
were  angry  with  the  master  because  he  had  prevented  them  from 
playing  hockey  in  the  school  yard  and  because  he  had  caught  one  of 
them  stealing,  planned  an  attack  on  him.  They  collected  in  a  shed 
attached  to  the  school,  armed  with  hockey  sticks,  sweeping  brushes, 
and  scrubs  —  the  last  weapon  consisting  of  a  heavy  block  of  wood 
attached  to  a  brush-handle.  The  master  came  down  from  the  school 
and  walked  along  the  shed.  As  he  turned  to  come  back  one  of  the  boys 
struck  him  on  the  head  with  a  scrub  and  another  struck  him  with  a 
sweeping  brush,  inflicting  such  severe  injuries  that  he  died  on  the  same 
day. 

The  County  Court  Judge  held  that  the  assault  was  an  accident 
arising  out  of  and  in  the  course  of  the  employment  of  the  master,  and 
that  the  accident  caused  his  death.  He  therefore  made  an  award  in 
favor  of  the  respondent.  The  Court  of  Appeal  (the  Lord  Chancellor 
of  Ireland,  Lord  Justice  Holmes,  and  Lord  Justice  Cherry)  affirmed  the 
decision  of  the  County  Court  Judge. 

Lord  Haldane,  L.  C,  said  that  the  appeal  raised  a  question  of 
considerable  importance  as  to  the  interpretation  of  the  expression 
"Accident  arising  out  of  and  in  the  course  of  the  employment"  in  the 
Workmen's  Compensation  act,  1906.  The  circumstances  in  which  the 
question  had  arisen  were  shortly  as  follows.  The  respondent  was  the 
mother  of  one  John  Kelly,  who  was  an  assistant  teacher  in  the  indus- 
trial school  at  Trim,  and  whose  death  was  caused  by  injury  received 
by  him  while  superintending  the  scholars  under  his  charge.  It  was  not 
in  dispute  that  the  respondent  was  partly  dependent  on  her  son,  or 
that  if  she  was  entitled  to  compensation  for  his  death  the  amount 
awarded,  £100,  was  a  proper  amount.  The  proceedings  out  of  which 
the  appeal  arose  were  taken  under  the  Act  referred  to,  and  assumed  the 
form  of  an  application  for  arbitration,  which  was  heard  by  the  County 
Court  Judge  of  the  county  of  Meath. 

The  deceased  John  Kelly,  who  was  employed  by  the  appellants,  was 


554  TRIM   JOINT   DISTRICT    SCHOOL   BOARD    V.    KELLY.      [CHAP.  IV. 

on  February  12,  1912,  superintending  the  boys  in  the  school  at  exercise 
in  the  school  yard  when  he  was  assaulted  by  several  of  them,  and  was 
struck  with  heavy  wooden  mallets.  He  died  as  the  result  of  his  in- 
juries. The  assault  was  premeditated  and  the  outcome  of  a  con- 
spiracy among  some  of  the  boys  to  injure  Kelly,  who  had  punished  or 
threatened  to  punish  them,  and  who  on  the  occasion  in  question  was 
remonstrating  with  them. 

After  referring  to  the  findings  of  the  County  Court  Judge,  the  Lrord 
Chancellor  said  that  he  washed  before  alluding  to  the  authorities  on 
the  point  to  look  at  the  question  as  if  it  were  a  new  one.  It  seemed  to 
him  important  to  bear  in  mind  that  "accident"  was  a  word  the  mean- 
ing of  which  might  vary  according  as  the  context  varied.  In  criminal 
jurisprudence  crime  and  accident  were  sharply  divided  by  the  presence 
or  absence  of  mens  rea.  But  in  contract  such  as  those  of  marine  insur- 
ance and  of  carriage  by  sea,  that  was  not  so.  In  such  cases  the  maxim 
In  jure  non  remota  causa  sed  proxima  spectatur  was  applied.  He  need 
only  refer  to  what  was  laid  down  by  Lord  Herschell  and  Lord  Bramwell, 
when  overruling  the  notion  that  a  peril  or  an  accident  in  such  cases 
was  what  must  happen  without  the  fault  of  anybody,  in  Wilson  v. 
The  Owners  of  the  Xantho  (3  The  Times  L.  R.  766;  12  App.  Cas. 
503). 

It  was  therefore  necessary,  in  endeavoring  to  arrive  at  what  was 
meant  by  "accident,"  to  consider  the  context  in  which  the  word  was 
introduced.  The  scope  and  purpose  of  that  context  might  make  the 
whole  difference. 

After  alluding  to  the  Workmen's  Compensation  Act,  1906,  and  ob- 
serving that  its  principle  was  to  impose  on  the  employer  a  general 
liability  to  pay  compensation  in  case  of  personal  injury  by  accident 
arising  out  of  and  in  the  course  of  the  employment  when  caused  to  a 
workman,  he  said  that,  if  he  had  to  consider  the  principle  of  the  statute 
as  res  Integra,  he  would  be  of  opinion  that  the  principle  was  one  more 
akin  to  insurance  at  the  expense  of  the  employer  of  the  workman 
against  accidents  arising  out  of  and  in  the  course  of  his  employment, 
than  to  the  imposition  on  the  employer  of  liability  for  anything  for 
which  he  might  reasonably  be  made  answerable  on  the  ground  that  he 
ought  to  have  foreseen  and  prevented  it.  He  thought  that  the  funda- 
mental conception  was  that  of  insurance  in  the  true  sense.  And  if  so 
it  appeared  to  him  to  follow  that  in  giWng  a  meaning  to  "accident" 
in  its  context  in  such  a  scheme  one  would  look  naturally  to  the  proxima 
causa,  of  which  Lord  Herschell  and  Lord  Bramwell  spoke  in  connec- 
tion with  marine  insurance,  the  kind  of  event  which  was  unlooked  for 
and  sudden,  and  caused  personal  injury,  and  was  limited  only  by  this, 
that  it  must  arise  out  of  and  in  the  course  of  the  employment.  Behind 
this  event  it  appeared  to  him  that  the  purpose  of  the  statute  rendered 
it  irrelevant  to  search  for  explanations  or  remoter  causes,  pro\ided  the 
circumstances  brought  it  within  the  definition. 


SECT.  IV.]      TRIM    JOINT   DISTRICT   SCHOOL    BOARD    V.    KELLY.  555 

No  doubt  the  analogy  of  the  insurance  cases  must  not,  as  Lord 
Lindley  pointed  out  in  his  judgment  in  Fenton  i\  Thorley,  [1903] 
A.  C.  443,  be  applied  so  as  to  exclude  from  the  cause  of  injury  the  acci- 
dent that  really  caused  it  merely  because  an  intermediate  condition  of 
the  injury  —  in  that  case  a  rupture  arising  from  an  effort  voluntarily 
made  to  move  a  defective  machine  —  had  intervened.  If,  so  far  as 
the  workman  was  concerned,  unexpected  misfortune  happened  and 
injury  was  caused,  he  was  to  be  indemnified.  The  important  limitation 
which  the  statute  seemed  to  him  to  impose  in  the  interest  of  the  em- 
ployer, who  could  not  escape  from  being  a  statutory  insurer,  was  that 
the  risk  should  have  arisen  out  of  and  in  the  course  of  the  employ- 
ment. 

It  was,  however,  argued  for  the  appellants  that  the  definition  of 
what  accident  meant  in  the  Act  was  determined  differently  by  the 
judgments  in  this  House  in  the  case  of  Fenton  v.  Thorley  (supra), 
above  referred  to.  But  the  House  was  not  there  considering  an  in- 
jury unexpected  by  the  workman,  but  caused  by  the  intentional  act  of 
another  person.  Nor  did  he  think  that  the  expressions  used  in  the 
judgments  excluded  such  a  case  from  the  definition  actually  given  of 
accident.  After  saying  that  the  element  of  haphazard  was  not  neces- 
sarily involved  in  the  word  "accidental,"  Lord  Macnaghten  defined 
"accident"  as  used  in  the  Act  "in  the  popular  and  ordinary  sense  of 
the  word  as  denoting  an  unlooked  for  mishap  or  an  untoward  event 
which  is  not  expected  or  designed."  He  thought  that  the  context 
showed  that  in  using  the  word  "designed"  he  was  referring  to  designed 
by  the  sufferer.  Nor  did  the  judgment  of  Lord  Lindley,  when  closely 
considered,  appear  to  him  to  support  the  argument  for  the  appel- 
lants. 

His  Lordship  then  considered  in  detail  the  judgment  of  Lord  Lindley 
and  referred  to  subsection  2(6)  of  section  1  of  the  Act,  which  he  said 
confirfned  the  \new  that  "accident"  was  used  in  that  section  as  in- 
cluding a  mishap  unexpected  by  the  workman,  irrespective  of  whether 
or  not  it  was  brought  about  by  the  wilful  act  of  someone  else.  In  his 
opinion,  the  language  of  the  judgments  in  Fenton  v.  Thorley,  so  far 
from  being  authority  which  supported  the  argument  addres.sed  to  their 
Lord.ships  from  the  Bar  for  the  appellants,  really  assisted  the  conten- 
tion of  the  respondent.  For  that  language  laid  stress  on  the  wide- 
reaching  scope  of  the  statute  in  question.  It  showed  how  that  scope 
extended  the  liability  it  embraced  beyond  liability  for  negligence,  and 
covered  a  field  akin  to  statutory  insurance  against  injury  to  the  work- 
man arising  out  of  and  in  the  course  of  his  employment,  provided  that 
that  injury  was  something  not  expected  or  designed  by  the  workman 
himself.  He  thought  that  this  conclusion  as  to  what  the  Legislature 
intended  by  its  language  was  strengthened  by  section  8,  which  placed 
disablement  from  certain  industrial  diseases  on  the  same  footing  as 
the  happening  of  an  accident.    This  provision  seemed  to  show  that  what 


556  TRIM   JOINT   DISTRICT    SCHOOL    BOARD    V.    KELLY.       [CHAP.  IV. 

the  legislature  had  in  view  as  a  general  object  to  be  attained  was  the 
compensation  of  the  workman  who  suffered  misfortune. 

If  the  object  of  this  statute  were  as  wide  as  he  gathered  from  the 
study  of  its  language,  its  construction  must,  as  it  appeared  to  him, 
be  that  "accident"  included  any  injury  which  was  not  expected  or  de- 
signed by  the  workman  himself.  If  so  the  Court  of  Appeal  in  England 
was  right  in  its  decision  in  Nisbet  v.  Rayne  (supra)  that  the  definition 
extended  to  a  case  of  death  by  murder,  and  the  Court  of  Appeal  in 
Ireland  was  right  in  Anderson  v.  Balfour,  (1910)  2  Ir.  497,  and  in  the 
present  case  in  taking  a  similar  view  of  the  meaning  of  "accident." 
To  take  a  different  \iew  appeared  to  him  to  amount,  in  the  language 
of  Mathew,  L.  J.,  in  Challis  v.  L.  and  S.  W.  R.  Company  (21  The 
Times  L.  R.,  486;  [1905]  2  K.  B.  154)  to  the  reading  into  the  Act  of 
a  pro\aso  that  an  accident  was  not  to  be  deemed  within  it  if  it  arose 
from  the  mischievous  act  of  a  person  not  in  the  service  of  the  em- 
ployer. The  Second  Division  of  the  Court  of  Session  refused  to  follow 
these  decisions  in  Murray  v.  Denholm,  [1911]  S.  C.  1807.  But  he 
thought,  for  reasons  that  he  had  already  given,  that  the  Lord  Justice 
Clerk  misinterpreted  Lord  Macnaghten's  judgment  in  Fenton  v. 
Thorley  (supra)  when  he  read  it  as  meaning  that  the  expression  "  acci- 
dent" could  not  be  applied  to  accident  arising  out  of  wilful  crime. 
And  he  was  confirmed  in  his  \'iew  of  the  unrestricted  rendering  of  the 
meaning  of  the  word  which  he  attributed  to  Lord  Macnaghten  by 
reading  his  subsequent  judgment  in  Clover,  Clayton  &  Co.  v.  Hughes, 
[1910]  A.  C.  242,  where  he  spoke  of  the  "far-reaching  application  of 
the  word,"  and  intimated  that  what  was  held  in  Fenton  v.  Thorley 
(supra)  was  that  "injury"  and  "accident"  were  not  to  be  separated, 
and  that  "injury  by  accident"  meant  nothing  more  than  accidental 
injury  or  accident  as  the  word  was  popularly  used. 

In  the  present  case  the  facts  left  little  doubt  on  his  mind  that  from 
one  point  of  view  at  all  events  Kelly  met  with  what  might  properly  be 
described  as  an  accident,  and  it  was  not  the  less  an  accident  in  an  or- 
dinary and  popular  sense  in  which  the  word  was  often  used  merely 
for  the  reason  that  it  was  caused  by  deliberate  violence.  For  the  rest, 
he  had  no  doubt  that  there  was  evidence  on  which  the  arbitrator 
could  find,  as  he  did,  that  the  accident  so  defined  arose  out  of,  and  in 
the  course  of,  the  employment. 

He  was  therefore  of  opinion  that  the  appeal  should  be  dismissed 
with  costs. 

Lord  Loreburn  concurred.  He  said  that  etymologically  the  word 
accident  meant  something  which  happened  —  a  rendering  which  was 
not  very  helpful.  They  were  to  construe  it  in  the  popular  sense,  as 
plain  people  would  understand  it,  but  they  were  also  to  construe  it 
in  its  setting,  in  the  context,  and  in  the  light  of  the  purpose  which 
appeared  from  the  Act  itself.  Now,  there  was  no  single  rigid  meaning 
in  the  common  use  of  the  word.    Mankind  had  taken  the  liberty  of 


SECT.  IV.]      TRIM   JOINT  DISTRICT   SCHOOL   BOARD   V.    KELLY.  557 

using  it,  as  they  used  so  many  other  words,  not  in  any  exact  sense,  but 
in  a  somewhat  confused  way,  or  rather  in  a  variety  of  ways. 

People  said  that  someone  met  a  friend  in  the  street  quite  by  accident, 
as  opposed  to  appointment,  or  omitted  to  mention  something  by  acci- 
dent, as  opposed  to  intention,  or  that  he  was  disabled  by  an  accident, 
as  opposed  to  disease,  or  made  a  discovery  by  accident,  as  opposed  to 
search  or  reasoned  experiment.  When  people  used  this  word  they  were 
usually  thinking  of  some  definite  event  which  was  unexpected,  but  it 
was  not  so  always,  for  one  might  say  of  a  person  that  he  was  foolish 
as  a  rule  and  wise  only  by  accident.  Again,  the  same  thing,  when 
occurring  to  a  man  in  one  kind  of  employment,  would  not  be  called 
accident,  but  would  be  so  described  if  it  occurred  to  another  not 
similarly  employed.  A  soldier  shot  in  battle  was  not  killed  by  acci- 
dent in  common  parlance.  An  inhabitant  trying  to  escape  from  the 
field  might  be  shot  by  accident.  It  made  all  the  difference  that  the 
occupation  of  the  two  was  different.  In  short,  the  conunon  mean- 
ing of  this  word  was  ruled  neither  by  logic  nor  by  et;vTnology,  but 
by  custom,  and  no  formula  would  precisely  express  its  usage  for  all 
cases. 

Mr.  Sankey  ably  urged  upon  their  Lordships  that  this  man  could 
not  have  been  killed  by  accident  because  he  was  struck  by  design. 
Suppose  some  ruffian  laid  a  log  on  the  rails  and  wrecked  a  train,  was 
the  guard  who  had  been  injured  excluded  from  the  Act?  Was  a  game- 
keeper who  was  shot  by  poachers  excluded  from  the  Act?  There  was 
design  enough  in  either  case,  and  of  the  worst  kind.  In  either  case 
he  would  have  thought,  if  the  nature  of  the  man's  employment  was 
looked  at,  it  might  be  said  he  was  injured  by  what  was  accident  in 
that  employment.  When  Lord  Macnaghten,  in  Fenton  v.  Thorley 
(supra)  spoke  of  the  occurrence  being  "undesigned,"  he  thought  he 
meant  undesigned  by  the  injured  person.  One  could  not  imagine  its 
being  said  of  a  suicide  that  he  was  killed  by  accident.  He  found  that 
to  treat  the  word  accident  as  though  the  Act  meant  to  contrast  it  with 
design  would  exclude  from  what  he  was  sure  was  an  intended  benefit 
numbers  of  cases  which  were  to  his  mind  obviously  within  the  mischief. 
That  made  him  realize  the  value  of  the  old  rule  about  construing  a 
remedial  statute.  Just  as  in  the  case  of  the  guard  or  the  gamekeeper, 
so  here  this  man  was  injured  by  what  was  accident  in  the  emplo\'nient 
in  which  he  was  engaged.  It  was  not  the  less  so  that  the  person  who 
inflicted  the  injury  acted  deliberately.  He  also  came  to  the  conclusion 
that  there  was  e\ddence  to  support  the  finding  of  the  County  Court 
J-udge  that  the  accident  arose  out  of  the  emplo\'ment. 

Lord  Dunedin  differed.  After  discussing  Lord  Macnaghten's  defi- 
nition of  "accident,"  in  Fenton  v.  Thorley  (supra),  he  said  that  there 
was  one  matter  of  completely  general  application  which  he  conceived 
was  authoritatively  decided  by  Fenton's  case  (supra)  and  that  was 
that  the  expression  "injury  by  accident"  in  the  statute  must  be  in- 


558  TRIM    JOINT   DISTRICT   SCHOOL    BOARD   V.    KELLY.      [CHAP.  IV. 

terpreted  according  to  the  meaning  of  the  words  in  ordinary  popular 
language. 

Now,  there  was  no  authoritative  test  of  what  was  the  meaning  of 
popular  language.  On  such  a  matter  they  were  bound  to  take  their 
own  personal  experience  as  persons  well  acquainted  with  popular 
language.  For  himself,  he  confessed  that  it  seemed  so  clear  that  in 
popular  language  the  injury  in  this  case  was  not  an  injury  caused  by 
accident,  that  it  was  difficult  for  him  to  use  terms  which  might  not 
appear  wanting  in  respect  to  those  who  had  expressed  themselves 
otherwise. 

It  must  be  conceded  that  the  injury  here  was  caused  by  design  — 
i.  e.,  that  there  was  an  intention  to  inflict  an  injury.  To  his  thinking, 
the  word  accident  in  popular  language  was  the  very  antithesis  of  design. 
He  brushed  aside  at  once  all  argument  as  to  acts  of  conscious  volition. 
The  design  must  be  design  to  inflict  the  injury,  not  design  to  do  the 
act  which  might,  as  it  turned  out,  be  the  cause  of  the  injury.  Popular 
language  bore  him  out  in  this  distinction.  If  a  workman  kicked  a 
brick  off  a  scaffold  and  it  happened  to  hit  and  injure  a  man  below, 
popular  language  would  say  he  had  met  with  an  accident.  Popular 
language  in  this  case,  he  maintained,  would  never  say  that  Kelly  met 
his  death  by  accident.  It  would  say  that  he  was  murdered.  In  so 
doing  it  might  not  be  positively  accurate.  The  crime  as  a  crime  might 
possibly  not  be  murder,  but  only  manslaughter,  as  indeed,  a  jury  found. 
But  whether  murder  or  manslaughter  mattered  not.  Both  terms  were 
negative  of  accident  in  the  popular  sense.  And  here  he  would  like  to 
say  that  in  his  view  criminal  law  had  nothing  to  do  with  the  matter. 
Criminal  law  had  to  do  with  the  meyis  rea.  When  one  said  that  popular 
language  would  describe  this  as  murder,  that  was  because  the  nar- 
rator of  what  had  happened  would  naturally  use  a  positive  expression 
which  according  to  his  view  fitted  the  facts.  The  point  was  that  he 
would  not  use  the  expression  "accident,"  because  he  would  consider  it 
inappropriate.  Suppose  A  attacked  B  and  was  shot  by  B  in  self- 
defense,  there  would  be  no  mnis  rea  in  B,  and  no  crime.  None  the  less, 
no  one  popularly  would  describe  A's  death  as  a  death  by  accident. 

He  wished  to  add  a  word  as  to  the  scope  of  the  statute.  It  was  said 
to  aid  the  argument  in  favor  of  the  enlarged  meaning  of  accident  to 
consider  that  the  statute  introduced  a  system  of  compulsory  insurance 
of  the  workman  by  his  employer.  Again,  with  great  deference,  he 
could  not  see  that  by  this  statute  the  argument  was  forwarded  one 
whit  —  insurance  let  it  be  —  but  insurance  against  what?  In  a  con- 
tract one  found  an  answer  to  this  question  in  the  terms  of  the  policy. 
Here  the  policy  was  the  Act  of  Parliament  and  by  an  interpretation 
of  its  terms  one  must  stand  or  fall.  So  that  it  only  came  back  to  the 
same  question.  What  was  the  meaning  of  the  word  as  used?  As  for 
further  speculations,  these,  he  humbly  thought,  were  entirely  outside 
their  province.     He  would  only  sa^'  that  if  judges  were  to  indulge  in 


SECT.  IV.]  SMITH   V.    FIFE   COAL   CO.,  LTD.  559 

speculations  and  reminiscences,  they  would  probably  find  that  such 
speculations  and  reminiscences  did  not  altogether  tally.  But  clearly 
they  had  nothing  to  do  with  such  matters.  Parliament  might  have 
left  out  the  word  accident.  It  did  not  do  so.  On  the  contrary,  it  put 
it  in,  as  Lord  Macnaghten  said,  with  the  approbation  of  all  the  other 
lords,  in  Fenton's  case  (supra),  "  parenthetically,  as  it  were,  to  qualify 
the  word  injury,  confining  it  to  a  certain  class  of  injuries  and  exclud- 
ing other  classes,"  and  they  had  to  interpret  it.  And  in  interpreting 
it  he  would  like  to  say  that  he  agreed  with  his  noble  and  learned  friend, 
Lord  Atkinson  whose  judgment  he  had  the  advantage  of  reading, 
that  the  interpretation  of  accident  given  by  the  appellants  really  cut 
the  word  accident  out  of  the  Act. 

On  the  whole  matter  he  put  to  himself  the  entire  question  in  the 
words  of  the  statute,  Was  what  Kelly  suffered  an  injury  by  accident 
arising  out  of  and  in  the  course  of  his  employment?  And  remembering 
the  repeated  decisions  of  this  House  that  he  was  to  take  the  language 
in  the  ordinary  popular  meaning  he  answered  unhesitatingly.  No. 

Lord  Atkinson  and  Lord  Parker  of  Waddington  agreed  with 
Lord  Dunedin. 

Lord  Shaw  of  Dunfermline  and  Lord  Reading  agreed  with  the 
Lord  Chancellor  and  Lord  Loreburn. 

In  the  result  the  appeal  was  dismissed. 


SMITH   V.   FIFE  COAL  CO.,  LTD. 
House  of  Lords,  1914. 

[Reported  30  Times  L.  R.  502.] 

yN  June  28,  1912,  the  appellant,  in  discharge  of  his  duty  as  a  miner 
in  the  Benarty  pit  of  the  respondents,  prepared  a  hole  at  his  working 
place  there  for  blasting,  by  placing  the  charge  and  detonator  therein, 
and  then  packing  the  charge.  Following  the  practice  in  the  mine,  al- 
though the  practice  was  unknown  to  the  management,  the  appellant, 
acting  upon  the  instructions  of  Howard,  the  shot-firer  appointed  in 
terms  of  the  Explosives  in  Coal  Mines  Order  of  February  21,  1910, 
section  2  (a),  connected  the  detonator  wire  to  the  cable.  Under  that 
Order  the  duty  was  placed  upon  the  shot-firer  of  connecting  the  cable 
to  the  firing  apparatus  or  battery,  and  thereafter  of  turning  the  handle 
on  the  battery  so  as  to  discharge  the  shot;  but  before  performing  either 
of  these  operations  it  was  his  duty  under  the  Order  to  see  that  all 
persons  in  the  vicinity  had  taken  proper  shelter.  On  the  date  in  ques- 
tion the  appellant,  after  connecting  the  cable  to  the  charge,  was  pro- 
ceeding to  a  place  of  safety  in  reliance  upon  the  shot-firer's  ascertain- 
ing that  the  appellant  had  taken  shelter  before  he  fired  the  shot. 


560  SMITH   V.    FIFE    COAL   CO.,  LTD.  [CHAP.  IV. 

The  SheriflF-Substitute  found  that  the  appellant  received  personal 
injury  by  accident  arising  out  of  and  in  the  course  of  his  employment, 
and  awarded  him  compensation.  The  Second  Division  held  that 
there  was  no  evidence  to  support  the  finding  of  the  arbitrator  and 
recalled  his  award. 

Lord  Dunedin.  My  Lords,  I  do  not  think  it  necessary  to  make 
any  remarks  of  a  general  character  upon  the  phrase  in  the  statute 
"arising  out  of  the  employment,"  because  I  did  so  with  the  approval 
of  other  members  of  your  Lordships'  House  in  the  very  recent  case 
of  Plumb  V.  Cobden  Flour  Mills  Company  (30  The  Times  L.  R.,  174, 
[1914]  A.  C.  62),  and  I  do  not  wish  to  repeat  what  I  then  said.  Nor  do 
I  think  that  there  was  any  divergence  of  opinion  in  the  judgments  of 
the  learned  judges  in  this  case  from  the  law  as  then  laid  down.  Taking 
the  phrase  as  a  test,  and  not  as  a  definition,  it  may,  I  think,  be  conceded 
that  if  the  accident  was  due  to  the  man's  arrogating  to  himself  duties 
which  he  was  not  called  on  to  perform,  and  which  he  had  no  right  to 
perform,  then  he  was  acting  out  of  the  sphere  of  his  emplo;y'ment,  and 
the  injury  by  accident  did  not  arise  out  of  his  employment.  The  sole 
question  is.  Was  this  so  in  this  case?  Or,  in  other  words,  What  is  the 
true  view  of  the  facts? 

I  regret  that  I  cannot  come  to  the  same  conclusion  as  that  come  to 
by  the  learned  judges.  I  think  that  I  can  best  make  my  view  clear  by 
taking  the  case  of  Kerr  v.  Baird  (1911  S.  C.  701)  and  contrasting  it 
with  this.  In  that  case  the  miner  arranged  a  shot  and  fired  it  entirely 
by  himself  —  I  mean  without  the  presence  or  help  of  the  shot-firer 
at  any  stage  of  the  proceeding.  It  was  held  rightly  that  the  accident 
was  due  to  the  action  of  the  man,  and  that  such  action  consisted  in 
taking  upon  himself  duties  which  he  had  no  right  to  perform.  Here, 
on  the  contrary,  the  miner  did  not  arrange  and  fire  the  shot.  One  part 
of  the  composite  action  was  his  duty  to  insert  and  stem  the  detonator, 
and  that  he  did.  The  next  step  —  the  connecting  of  the  detonator 
wire  to  the  cable  —  he  had  no  business  to  do,  and  in  doing  it  he  did 
something  which  was  not  in  the  sphere  of  his  employment.  But 
two  more  stages  are  necessary  before  we  arrive  at  the  explosion  which 
causes  the  injury  and  forms  the  accident  —  namely,  the  connecting 
of  the  cable  to  the  battery  and  the  putting  of  the  battery  into  efficient 
action  by  the  turning  of  the  handle,  and  both  these  stages  are  done 
by  the  shot-firer.  In  the  circumstances  I  cannot  bring  myself  to  see 
that  the  efficient  cause  of  the  accident  was  connected  with  the  arro- 
gation  of  unauthorized  duty  by  the  miner.  It  is  true  that  no  ex-plosion 
could  have  taken  place  unless  the  cable  had  been  connected  with  the 
detonator.  But  that  is  only  a  remote  cause  sine  qva  non,  and  one  in 
which  the  relation  of  the  appellant  to  the  act  as  distinguished  from 
any  other  person  is  immaterial.  It  seems  to  me  that  the  question  of 
fact  which  has  to  be  answered  is  this :  Did  the  injury  to  the  appellant 
arise  out  of  the  illicit  and  unauthorized  action  of  the  appellant?    The 


SECT.  IV.]  MARTIN   V.   LOVIBOND   &    SONS,  LTD.  561 

answer  to  that,  it  seems  to  me,  so  far  as  the  action  of  the  appellant 
consisted  in  coupling  the  wire,  is  "No."  The  injury  arose  from  the 
premature  explosion,  and  that  premature  explosion  was  caused  by  the 
action  of  the  shot-firer.  His  Lordship  was  therefore  of  opinion  that  the 
view  of  the  facts  taken  by  the  arbitrator  was  correct,  and  that  his 
finding  should  be  restored. 

Lord  Kinnear,  Lord  Atkinson,  and  Lord  Shaw  of  Dunferm- 
line concurred. 

Lord  Parmoor  gave  judgment  to  the  same  effect. 


MARTIN  V.  J.   LOVIBOND   &  SONS,  LTD. 
Court  of  Appeal,  1914. 

[Reported  [1914]  2  K.  B.  227.] 

Cozens-Hardy,  M.R.  In  this  case  the  learned  county  court  judge, 
a  judge  of  very  great  experience,  has  held  that  the  dependents  of  a 
deceased  drayman  are  entitled  to  compensation.  In  these  cases  it  is 
necessary  to  consider  the  nature  of  the  employment,  the  obligations 
of  the  man  with  reference  to  his  employment,  and  all  the  circum- 
stances, before  one  can  arrive  at  a  conclusion.  The  man  was  a  dray- 
man. His  duties  were  from  eight  in  the  morning  till  eight  in  the  evening. 
All  that  time  he  was  going  round  for  his  employers,  who  were  brewers, 
not  merely  to  deliver  beer  at  the  public-houses  tied  to  the  brewers' 
firm,  but  also  to  deliver  bottled  beer  and  other  things  to  private  cus- 
tomers, to  obtain  orders  for  beer  and  everything  of  that  kind.  He  was 
going  his  round;  the  learned  judge  finds  as  a  fact  that  he  was  in  the 
particular  street  where  this  accident  happened;  he  was  there  with  his 
dray^n  the  course  of  going  his  round.  He  was  not  de\aating  in  any 
way  from  his  duty.  It  was  about  two  o'clock  in  the  afternoon.  What  is 
the  position  of  a  man  who  cannot  go  home  for  his  meals,  who  is  bound  to 
be  away  from  his  home  from  eight  in  the  morning  till  eight  in  the  even- 
ing, and  whose  business  keeps  him  during  all  that  time  more  or  less  con- 
stantly in  the  streets?  This  man  pulled  up  his  dray  on  the  proper  side 
of  the  road,  crossed  to  a  public-house,  not  to  linger  there  at  all,  but 
for  the  purpose  of  getting  a  glass  of  beer.  He  had  a  glass  of  beer  there, 
he  was  only  away  two  minutes,  and  in  crossing  back  from  the  public- 
house  to  the  dray  he  was  knocked  down  by  a  motor  car. 

In  the  first  place,  it  is  said  that  this  accident  did  not  arise  in  the 
course  of  his  employment.  I  entirely  fail  to  understand  that.  I  do 
not  think  there  was  any  breach  or  break  in  the  course  of  his  employ- 
ment. I  shrink  from  sajdng  that  a  man  who  was  away  from  home,  and 
necessarily  away  from  home  for  twelve  hours,  is  guilty  of  breaking 
the  course  of  his  employment  because  he  gets  off  the  dray  for  necessary 


562  MAKTIN    V.   LOVIBOND    &    SONS,  LTD.  [CHAr.  IV. 

purposes.  As  I  put  it  during  the  course  of  the  argument,  supposing 
he  had  stopped  to  give  the  horses  some  water,  could  it  be  said  that  that 
was  not  in  the  course  of  his  employment?  I  feel  great  difficulty  in 
seeing  that  under  circumstances  like  these  the  driver  of  the  dray  is  not 
equally  entitled  to  procure  reasonable  liquid  refreshment  for  himself, 
not  deviating  from  the  course  of  his  route,  not  lingering  in  the  public- 
house,  but  simply  going  in  and  getting  a  glass  of  beer  as  in  this  case, 
and  returning  at  once  to  his  dray.  I  therefore  think  that  there  was  no 
breach  of  the  course  of  his  employment,  and  that  the  accident  did  hap- 
pen in  the  course  of  his  employment. 

Then  it  is  said,  and  in  truth,  that  the  accident  must  arise  not  merely 
"in  the  course  of"  but  "  out  of  the  employment,"  and  that  this  man  was 
no  more  exposed  to  the  risk  of  being  knocked  down  by  a  motor  car  than 
any  other  member  of  the  public.  I  cannot  assent  to  that.  His  duties  as 
a  drayman  involved  his  being  from  eight  in  the  morning  till  eight  at  night 
more  or  less  actually  in  the  streets  of  London,  spending  his  life  in  the 
streets  of  London.  It  seems  to  me  to  bear  the  strictest  possible  analogy 
to  the  bicycle  case  —  Pierce  v.  Provident  Clothing  and  Supply  Co., 
[1911]  1  K.  B.  997,  —  where  we  held  that  a  man  who  is  exception- 
ally exposed  to  street  accidents  is  entitled  to  claim  in  respect  of  such 
an  accident  as  arising  out  of  his  employment,  although  an  ordinary 
member  of  the  public  not  so  exceptionally  exposed  would  not  be  so 
entitled. 

The  learned  judge  held  that  what  the  man  did  was  not  only  in  the 
course  of  his  employment,  but  was  done  perfectly  reasonably  —  not 
unreasonably  in  any  way.  He  has  held  that  what  he  did  was  really 
done  in  order  to  enable  him  to  better  discharge  his  duties  as  a  dray- 
man for  his  employers.  I  hold  that  there  is  no  ground  for  differing 
from  his  decision. 

Sir  Samuel  Evans,  President.  I  agree.  As  Lord  Loreburn  said 
in  one  of  the  cases  in  the  House  of  Lords,  the  more  one  sees  of  these 
cases  under  the  Workmen's  Compensation  Act,  the  more  one  feels 
that  all  of  them  are  in  reality  pure  questions  of  fact,  with  regard  to 
which  the  only  function  of  the  court  is  to  interpose  when  there  is  no 
evidence  in  support  of  a  particular  finding. 

The  facts  here  are  few  and  simple,  and  I  will  not  repeat  them.  I 
will  only  emphasize  that  the  evidence  before  the  learned  county  court 
judge  and  the  finding  of  the  learned  judge  were  that  this  man  was  at 
his  work  for  twelve  hours  or  more,  and  further  that  during  those  twelve 
hours  he  was  away  from  his  home  and  his  place  of  business.  He  had 
no  eating  or  resting  place  except  on  his  dray.  On  the  day  in  question 
he  goes  to  the  public-house,  not  as  a  loafer,  or  as  a  lounger,  or  a  man 
addicted  to  drink,  but  for  the  purpose  of  refreshing  himself  with  one 
glass  of  beer,  and  the  whole  period  of  his  absence,  including  the  time 
taken  up  in  ordering  the  refreshment  and  its  consumption,  the  learned 
judge  says  was  only  two  minutes.    It  is  said  that  the  accident  that  oc- 


SECT.  IV.]  McNICOL'S   CASE.  563 

curred  to  this  man  while  going  back  to  his  dray  did  not  arise  out  of  or 
in  the  course  of  his  employment.  Personally,  I  am  very  glad  that  the 
learned  judge  has  found  that  what  he  did  was  a  reasonable  incident  of 
his  employment.  In  my  opinion  he  was  justified  in  so  finding.  If  he 
had  found  that  there  was  an  implied  term  in  his  contract  of  ser\ice 
that  the  man  should  be  allowed  to  take  refreshment  in  this  way  during 
the  twelve  hours,  I  think  no  court  would  have  disturbed  his  finding. 
The  learned  judge  was  amply  justified  in  coming  to  the  conclusion 
that  the  accident  to  the  deceased,  in  the  circumstances,  arose  out  of 
and  in  the  course  of  his  employment.    The  appeal  therefore  fails. 

Eve,  J.  I  concur.  The  employment  in  this  case  was  of  a  character 
which  I  think  may  be  properly  defined  as  continuous  and  peripatetic. 
It  was  an  employment  in  which  the  workman  was  exceptionally  exposed 
to  street  accidents.  The  peripatetic  character  of  the  employment 
made  the  accident  one  "arising  out  of  the  employment,"  and  its  con- 
tinuity made  it  one  "  arising  in  the  course  of  the  employment."  I  think 
the  learned  judge  was  quite  right. 

Appeal  dismissed. 


McNICOL'S    CASE. 
Supreme  Judicial  Court  of  Massachusetts,  1913. 

[Reported  215   Mass.   497.] 

RuGG,  C.  J.  This  is  a  proceeding  under  St.  1911,  c.  751,  as  amended 
by  St.  1912,  c.  571,  known  as  the  w^orkmen's  compensation  act,  by  de- 
pendent relatives  for  compensation  for  the  death  of  Stuart  McNicoI. 

1.  The  first  question  is  whether  the  deceased  received  an  "injury 
arising  out  of  and  in  the  course  of  his  employment, "  within  the  meaning 
of  those  words  in  Part  II,  §  1,  of  the  act.  In  order  that  compensation 
may  be  due  the  injury  must  both  arise  out  of  and  also  be  received  in  the 
course  of  the  employment.     Neither  alone  is  enough. 

It  is  not  easy  nor  necessary  to  the  determination  of  the  case  at  bar  to 
give  a  comprehensive  definition  of  these  words  which  shall  accurately 
include  all  cases  embraced  within  the  act  and  with  precision  exclude 
those  outside  its  terms.  It  is  sufficient  to  say  that  an  injury  is  received 
"in  the  course  of"  the  employment  when  it  comes  while  the  workman  is 
doing  the  duty  which  he  is  employed  to  perform.  It  "arises  out  of"  the 
employment,  when  there  is  apparent  to  the  rational  mind,  upon  consid- 
eration of  all  the  circumstances,  a  causal  connection  between  the  con- 
ditions under  which  the  work  is  required  to  be  performed  and  the 
resulting  injury.  Under  this  test,  if  the  injury  can  be  seen  to  have 
followed  as  a  natural  incident  of  the  work  and  to  have  been  contem- 
plated by  a  reasonable  person  familiar  with  the  whole  situation  as  a 
result  of  the  exposure  occasioned  by  the  nature  of  the  employment, 


564  MCNICOL'S   CASE.  [CHAP.  IV. 

then  it  arises  "  out  of  "  the  employment.  But  it  excludes  an  injury  which 
cannot  fairly  be  traced  to  the  employment  as  a  contributing  proximate 
cause  and  which  comes  from  a  hazard  to  which  the  workmen  would 
have  been  equally  exposed  apart  from  the  employment.  The  causa- 
tive danger  must  be  peculiar  to  the  work  and  not  common  to  the 
neighborhood.  It  must  be  incidental  to  the  character  of  the  business 
and  not  independent  of  the  relation  of  master  and  servant.  It  need 
not  have  been  foreseen  or  expected,  but  after  the  event  it  must  appear 
to  have  had  its  origin  in  a  risk  connected  with  the  employment,  and  to 
have  flowed  from  that  source  as  a  rational  consequence. 

The  exact  words  to  be  interpreted  are  found  in  the  English  workmen's 
compensation  act,  and  doubtless  came  thence  into  our  act.  Therefore 
decisions  of  English  courts  before  the  adoption  of  our  act  are  entitled 
to  weight.  Ryalls  v.  Mechanics'  Mills,  150  Mass.  190.  It  there  had 
been  held  that  injuries  received  from  lightning  on  a  high  and  unusu- 
ally exposed  scaffold,  Andrew  v.  Failsworth  Industrial  Society,  [1904] 
2  K.  B.  32;  from  the  bite  of  a  cat  habitually  kept  in  the  place  of  employ- 
ment, Rowland  v.  Wright,  [1909]  1  K.  B.  963;  from  a  stone  thrown  by  a 
boy  from  the  top  of  a  bridge  at  a  locomotive  passing  underneath,  Challis 
V.  London  &  Southwestern  Railway,  [1905]  2  K.  B.  154;  and  from  an 
attack  upon  a  cashier  traveling  with  a  large  sum  of  money,  Nisbet  v. 
Rayne  &  Burn,  [1910]  2  K.  B.  689,  all  arose  in  the  course  and^out  of  the 
employment,  while  the  contrary  had  been  held  as  to  injuries  resulting 
from  a  piece  of  iron  thrown  in  anger  by  a  boy  in  the  same  service,  Armi- 
tage  V.  Lancashire  &  Yorkshire  Railway,  [1902]  2  K.  B.  178;  from  fright 
at  the  incursion  of  an  insect  into  the  room,  Craske  v.  Wigan,  [1909]  2  K. 
B.  635;  and  from 'a  felonious  assault  of  the  employer,  Blake  v.  Head,  106 
L.  T.  Rep.  822. 

The  definition  formulated  above,  when  referred  to  the  facts  of  these 
cases,  reaches  results  in  accord  with  their  conclusions.  Applying  it  to 
the  facts  of  the  present  case,  it  seems  plain  that  the  injury  of  the  de- 
ceased arose  "out  of  and  in  the  course  of  his  employment."  The  find- 
ings of  the  Industrial  Accident  Board  in  substance  are  that  Stuart  Mc- 
Nicol,  while  in  the  performance  of  his  duty  at  the  Hoosac  Tunnel  Docks 
as  a  checker  in  the  employ  of  a  firm  of  importers,  was  injured  and  died  as 
a  result  of  "  blows  or  kicks  administered  to  him  by  .  .  .  [Timothy]  Mc- 
Carthy," who  was  in  "  an  intoxicated  frenzy  and  passion."  McCarthy 
was  a  fellow  workman  who  "  was  in  the  habit  of  drinking  to  intoxi- 
cation, and  when  intoxicated  was  quarrelsome  and  dangerous,  and  un- 
safe to  be  permitted  to  work  with  his  fellow  employees,  all  of  which  was 
known  to  the  superintendent  Matthews,"  who  knowingly  permitted 
him  in  such  condition  to  continue  at  work  during  the  day  of  the  fatality, 
—  which  occurred  in  the  afternoon.  The  injury  came  while  the  de- 
ceased was  doing  the  work  for  which  he  was  hired.  It  was  due  to  the 
act  of  an  ob\aously  intoxicated  fellow  workman,  whose  quarrelsome 
disposition  and  inebriate  condition  were  well  known  to  the  foreman  of 


SECT.   IV.]  DONOVAN'S   CASE.  565 

the  employer.  A  natural  result  of  the  employment  of  a  peaceable  work- 
man in  company  with  a  choleric  drunkard  might  have  been  found  to  be 
an  attack  by  the  latter  upon  his  companion.  The  case  at  bar  is  quite 
distinguishable  from  a  stabbing  by  a  drunken  stranger,  a  felonious  at- 
tack by  a  sober  fellow  workman,  or  even  rough  sport  or  horseplay  by 
companions  who  might  have  been  expected  to  be  at  work.  Although 
it  may  be  that,  upon  the  facts  here  disclosed,  a  Hability  on  the  part  of 
the  employer  for  negligence  at  common  law  or  under  the  employers' 
liability  act  might  have  arisen,  this  decision  does  not  rest  upon  that 
ground,  but  upon  the  causal  connection  between  the  injury  of  the  de- 
ceased and  the  conditions  under  which  the  defendant  required  him  to 
work.  A  fall  from  a  quay  by  a  sailor  while  returning  from  shore  leave, 
Kitchenham  v.  Owners  of  S.  S.  Johannesburg,  [1911]  1  K.  B.  523;  S.  C. 
[1911]  A.  C.  417;  a  sting  from  a  wasp,  Amys  v.  Barton,  [1912]  1  K.  B.  40; 
and  a  frost  bite,  Warner  v.  Couchman,  [1912]  A.  C.  35,  all  have  been 
held  to  be  injuries  not  "arising  out  of"  the  employment.  But  we  find 
nothing  in  any  of  them  in  conflict  with  our  present  conclusion.  Nor 
is  there  anything  at  variance  with  it  in  Mitchinson  v.  Day  Brothers, 
[1913]  1  K.  B.  603,  where  it  was  held  that  injuries  resulting  from  an 
assault  by  a  drunken  stranger  ^upon  an  employee  engaged  at  his  work 
on  the  highway  did  not  arise  out  of  the  employment.  That  was  a 
quite  different  situation  from  the  one  now  before  us.^ 


DONOVAN'S   CASE. 
Supreme  Judicial  Court  of  Massachusetts,   1914. 

[Reported  217  Mass.  76.] 

Sheldon,  J.  The  contest  here  is  between  Donovan,  an  employee 
of  one  McGreevey,  and  an  insurance  company  which  had  insured 
McGreevey  under  'the  provisions  of  St.  1911,  c.  751,  Part  V,  §  3,  as 
amended  by  St.  1912,  c.  571,  §  17.  The  point  in  dispute  is  whether 
Donovan's  injury  arose  out  of  and  in  the  course  of  his  employment, 
within  the  meaning  of  Part  II,  §  1,  of  the  act  of  1911  above  cited.  See 
McNicol's  case,  215  Mass.  497.  This  must  be  decided  upon  the  facts 
found  by  the  Industrial  Accident  Board  in  its  review  of  the  report  of 
the  committee  of  arbitration.  St.  1911,  c.  751,  Part  III,  §§  5,  10,  16, 
as  amended  by  St.  1912,  c.  571,  §§  10,  13,  15. 

Donovan  was  employed  by  McGreevey  in  cleaning  out  catch  basins 
at  a  place  about  two  miles  from  his  home.  It  had  been  and  was  his  cus- 
tom, in  common  with  other  employees  and  with  the  knowledge  and  con- 
sent of  his  employer,  to  ride  to  and  from  the  vicinity  of  the  catch  basins 

^  The  remainder  of  the  opinioa  is  omitted.  —  Ed. 


566  DONOVAN'S   CASE.  [CHAP.  IV. 

in  a  wagon  furnished  by  his  employer,  the  wagon  meeting  the  employees 
on  the  street  and  the  employer  being  notified  if  any  of  the  employees 
failed  to  report  for  work  at  the  beginning  of  the  day.  The  wagon  was 
at  the  service  of  the  employees  at  the  end  of  the  day,  and  they  might 
ride  in  it  back  to  the  employer's  barn  if  they  wished.  Donovan  was  in- 
jured while  so  riding  in  this  wagon  at  the  end  of  his  day's  work,  and  the 
board  has  found  that  his  transportation  on  the  wagon  was  "incidental 
to  his  employment,"  and  "  therefore"  arose  " out  of  and  in  the  course  of 
said  employment."  The  language  of  this  last  finding  is  a  little  obscure; 
but  we  treat  it,  as  both  counsel  and  also  the  Superior  Court  have  treated 
it,  as  being  an  inference  that  Donovan's  injury  arose  out  of  and  in  the 
course  of  his  employment,  drawn  from  the  other  facts  stated,  including 
the  fact  that  the  transportation  was  "incidental  to  his  employment." 
The  question  to  be  decided  is  therefore  whether  this  inference  could  be 
drawn  from  those  facts ;  for  the  facts  themselves  now  cannot  be  inquired 
into.     St.  1912,  c.  571,  §  14. 

There  have  been  several  decisions  in  England  as  to  when  and  how  far 
an  employee  can  be  said  to  have  been  in  the  employ  of  his  master,  while 
traveling  to  and  from  his  work  in  a  vehicle  or  means  of  conveyance 
provided  by  the  latter,  and  how  far  injuries  received  in  such  a  con- 
veyance can  be  said  to  have  arisen  out  of  and  in  the  course  of  the 
employment.  Many  of  [these  decisions  have  been  cited  and  discussed 
by  Professor  Bohlen  in  25  Harvard  Law  Review,  401,  et  seq.  From 
his  discussion  and  the  cases  referred  to  by  him,  and  from  the  later  de- 
cisions of  the  English  courts,  the  rule  has  been  established,  as  we  con- 
sider in  accordance  with  sound  reason,  that  the  employer's  liability  in 
such  cases  depends  upon  whether  the  conveyance  has  been  provided 
by  him,  after  the  real  beginning  of  the  employment,  in  compliance  with 
one  of  the  implied  or  express  terms  of  the  contract  of  emplojTuent,  for 
the  mere  use  of  the  employees,  and  is  one  which  the  employees  are  re- 
quired, or  as  a  matter  of  right  are  permitted,  to  use  by  virtue  of  that 
contract.  See  Davies  v.  Rhymney  Iron  Co.,  16  T.  L.  R.  329;  Holmes  v. 
Great  Northern  Railway,  [1900]  2  Q.  B.  409;  Whitbread  v.  Arnold,  99 
L.  T.  103;  Cremins  v.  Guest,  Keen  &  Nettlefolds,  [1908]  1  K.  B.  469; 
Gane  v.  Norton  Hill  Colhery  Co.,  [1909]  2  K.  B.  539;  Hoskins  v.  J.  Lan- 
caster, 3.  B.  W.  C.  C.  476;  Parker  v.  Pout,  105  L.  T.  493;  Walters  v. 
Staveley  Coal  &  Iron  Co.,  105  L.  T.  119,  and  4  B.  W.  C.  C.  89  and  303; 
Greene  v.  Shaw,  [1912]  2  Ir.  430,  and  5  B.  W.  C.  C.  530;  Mole  v. 
Wadworth,  6  B.  W.  C.  C.  128;  Edwards  v.  Wingham  Agricultural  Im- 
plements Co.,  [1913]  3  K.  B.  596,  and  6  B.  W.  C.  C.  511;  Walton  i'. 
Tredegar  Iron  &  Coal  Co.  6  B.  W.  C.  C.  592. 

The  finding  of  the  Industrial  Accident  Board  that  Donovan's  trans- 
portation was  "incidental  to  his  employment"  fairly  means,  in  the 
connection  in  which  it  was  used,  that  it  was  one  of  the  incidents  of  his 
employment,  that  it  was  an  accessory,  collateral  or  subsidiary  part  of 
contract  of  employment,  something  added  to  the  principal  part  of  that 


SECT.  IV.]  MILLIKEN's    CASE.  5G7 

contract  as  a  minor,  but  none  the  less  a  real  feature  or  detail  of  the  con- 
tract. Whatever  has  been  uniformly  done  in  the  execution  of  such 
a  contract  by  both  of  the  parties  to  it  well  may  be  regarded  as  having 
been  adopted  by  them  as  one  of  its  terms.  Especially  is  this  so  where 
none  of  the  provisions  of  the  contract  has  been  shown  by  either  party, 
but  everything  is  left  to  be  inferred  from  their  conduct.  That  was  the 
reasoning  of  this  court  in  such  cases  as  Gillshannon  v.  Stony  Brook  Rail- 
road, 10  Cush.  228,  231.  McGuirk  v.  Shattuck,  160  Mass.  45,  47;  Boyle 
V.  Columbian  Fire  Proofing  Co.,  182  Mass.  93,  98;  Kilduff  v.  Boston 
Elevated  Railway,  195  Mass.  307;  and  Feneff  v.  Boston  &  Maine  Rail- 
road, 196  Mass. "^575,  577. 

Accordingly  we  are  of  the  opinion  that  the  Industrial  Accident  Board 
had  the  right  to  draw  the  inference  that  Donovan's  injury  arose  out  of 
and  in  consequence  of  his  employment. 

Under  our  own  decisions,  Donovan  at  the  time  of  his  injury  was  in 
the  employ  of  McGreevey  and  was  a  fellow  servant  with  the  driver  of 
the  wagon.  O'Brien  v.  Boston  &  Albany  Railroad,  138  Mass.  387. 
See  also  the  cases  last  above  cited.  It  is  not  easy  to  suppose  that  the 
Legislature  intended  that  one  who  was  under  the  disabilities  of  a  servant 
should  be  excluded  arbitrarily  from  the  benefits  which  it  undertook  to 
give  to  all  employees.  The  provisions  of  the  act  are  to  be  construed 
broadly  rather  than  narrowly.     Coakley's  Case,  216  Mass.  71,  73. 

The  decree  of  the  Superior  Court  ^  must  be  affirmed ;  and  it  is 

So  ordered. 


MILLIKEN'S   CASE. 
Supreme  Judicial  Court  of  Massachusetts,  1914. 

[Reported  216  Mass.  293.] 

LoRiNG,  J.  This  is  an  appeal  from  a  decree  of  the  Superior  Court 
[Morton,  J.]  based  on  a  decision  of  the  Industrial  Accident  Board 
ordering  the  insurer  to  pay  $1,950  for  the  death  of  Frank  T.  Milli- 
ken.  '  The  facts  found  by  the  board  were  these: 

Milliken,  at  the  time  of  his  death  in  October,  1912,  and  for  some 
twenty-seven  years  before  that  time,  had  been  a  driver  in  the  employ 
of  A.  Towle  and  Company,  the  insured,  who  were  teamsters.  Some 
four  or  five  years  before  his  death  Milliken,  in  the  course  of  his  employ- 
ment, fell  from  his  wagon,  striking  on  his  head.  This  caused  inter  alia 
an  impairment  of  memory.  One  afternoon  in  July,  1912  (three  months 
before  his  death),  Milliken  lost  his  memory  while  driving  his  employers' 
wagon  in  Boston,  and  for  half  an  hour  was  unable  to  renember  where 
he  was  or  to  identify  the  streets  in  which  he  was  driving,  although  they 

*  The  decree  was  made  by  Pierce,  J.     The  insurer  appealed. 


568  milliken's  case.  [chap.  iv. 

were  streets  with  which  he  was  "thoroughly  famihar."  During  the 
day  of  October  8,  1912,  from  a  similar  failure  of  memory  Milliken  did 
not  call  for  packages,  as  his  duties  required,  and  reported  (contrary  to 
the  fact)  that  he  had  not  received  them  because  they  were  not  ready. 
Thereupon  he  was  directed  to  drive  his  wagon  to  his  employers '  stable 
in  Charlestown  to  be  put  up  for  the  night.  Driving  his  wagon  to  the 
stable  for  the  night  was  part  of  Milliken's  regular  work.  This  order 
was  given  to  Milliken,  at  about  five  o'clock  in  the  afternoon  at  his 
employers'  Boston  office  in  Matthews  Street  near  Post  Office  Square. 
"At  some  place  between  Post  Office  Square  and  the  stable  in  Charles- 
town  he  was  seized  with  such  a  loss  of  memory  and  mental  faculties 
that  he  was  unable  to  recognize  streets  and  places,  and  on  account 
of  such  disordered  mental  condition  he  became  lost  and  unable 
to  direct  the  horse  to  the  stable."  About  eleven  o'clock  that  night 
Milliken  was  seen  driving  the  wagon  in  a  private  way  in  Burlington 
and  was  helped  back  to  the  public  highway,  whereupon  he  drove  away 
in  the  direction  of  Lowell.  At  this  time  Milliken  would  not  speak. 
At  about'six  o'clock  the  following  morning  Milliken  was  found  l^ang  in 
a  swamp  in  Woburn  and  —  with  the  exception  of  his  head  —  covered 
with  mud  and  water.  His  hat  was  found  on  the  "adjacent  road" 
some  two  hundred  feet  away,  and  the  horse  and  wagon  were  found  "  by 
the  side  of  said  road  about  half  a  mile  distant  in  the  direction  of  Boston." 
Milliken  was  taken  to  a  hospital  at  Woburn,  where  he  died  on  October 
14,  without  recovering  his  memory.  He  "spoke  in  a  delirium  only  of 
looking  for  his  horse."  The  cause  of  his  death  was  pneumonia,  brought 
on  by  cold  and  exposure  while  lying  in  the  swamp. 

The  Industrial  Accident  Board  found:  "That  the  loss  of  memory 
with  which  the  employee,  Milliken,  was  seized  was  not  in  itself  a  fatal 
disorder,  and  that  he  would  not  have  met  his  death  as  he  did  but  for  the 
horse  and  wagon  and  his  effort  to  get  them  to  the  stable." 

The  dependent's  contention  is  that  Milliken's  death  was  caused  by 
pneumonia  brought  on  by  his  falling  into  the  swamp  and  lying  there  all 
night;  that  under  these  circumstances  falling  into  the  swamp  and  lying 
there  all  night  was  a  personal  injury  which  caused  his  death;  and  for^ 
this  she  relies  on  Alloa  Coal  Co.  v.  Drylie,  50  S.  L.  R.  350,  and  Kelly  v. 
Auchenlea  Coal  Co.,  48  S.  L.  R.  768. 

The  fact  that  Milliken  "  would  not  have  met  his  death  as  he  did  but 
for  the  horse  and  wagon  and  his  effort  to  get  them  to  the  stable,"  goes 
no  farther  than  to  show  that  the  personal  injury  suffered  by  Milliken 
was  a  personal  injury  "in  the  course  of  his  employment." 

The  difficulty  in  the  case  arises  from  the  provision  that  the  personal 
injury  must  be  one  "arising  out  of"  as  well  as  one  "in  the  course  of  his 
employment." 

It  was  held  in  McNicol's  case,  215  Mass.  497,  that  the  pro\asion 
limiting  the  personal  injuries  for  which  compensation  is  to  be  made  to 
those  "arising  out  of"  the  employee's  employment  means  that  the  na- 


il 


SECT.  IV.]  STJND1NE*S   CASE.  569 

ture  and  conditions  of  the  emplo;^Tnent  must  be  such  that  the  per- 
sonal injury  which  in  fact  happened  was  one  Hkely  to  happen  to  an 
employee  in  that  employment.  In  that  case  it  was  said  that  there  must 
be  a  "causal  connection"  between  the  employment  and  the  injury. 

There  is  nothing  in  the  employment  of  driving  a  wagon  which  makes 
it  likely  that  the  employee  will  alight  from  his  wagon,  wander  to  and  fall 
into  a  swamp,  and  lie  there  all  night.  The  distinction  between  the  case 
at  bar  and  a  case  within  this  clause  of  the  act  is  well  brought  out  by 
what  is  suggested  by  a  remark  of  the  majority  of  the  Industrial  Acci- 
dent Board.  If  the  horse  driven  by  Milliken  had  run  away  and  Milli- 
ken  had  been  thereby  thrown  out  and  killed,  the  personal  injury  in  fact 
suffered  in  that  case  would  have  been  one  which  from  the  nature  of  his 
employment  would  be  likely  to  arise,  and  so  would  be  one  "  arising  out 
of  his  [the  employee's]  employment."  But  as  we  have  said,  there  is 
nothing  in  the  employment  of  driving  a  wagon  which  makes  it  likely 
that  the  employee  will  alight  from  his  wagon,  wander  to  and  fall  into  a 
swamp,  and  lie  there  all  night.  Sneddon  v.  Greenfield  Coal  &  Brick  Co., 
47  S.  L.  R.  337,  much  relied  on  here  by  the  dependent,  is  another  case 
which  brings  out  the  distinction.  There  a  miner  got  lost  in  the  under- 
ground ways  of  a  mine  and  was  killed  by  the  exhaust  steam  from  an 
engine  which  was  not  fenced  off.  See  also  Wicks  v.  Dowell  &  Co., 
[1905]  2  K.  B.  25. 

We  find  nothing  in  the  other  cases  relied  on  by  the  dependent  which 
calls  for  notice. 

It  seems  plain  that,  if  Milliken's  death  was  caused  by  a  personal  in- 
jury, it  was  the  one  which  happened  some  four  or  five  years  before  the 
occurrence  here  complained  of  and  before  the  workmen's  compensation 
act  was  passed.  At  that  time  he  fell  from  his  wagon  and  striking  on  his 
head  suffered  as  a  result  "an  impairment  of  his  memory." 

The  decree  of  the  Superior  Court  appealed  from  is  reversed,  and  a 
decree  should  be  entered  declaring  that  the  dependent  has  no  claim 
against  the  insurer. 

So  ordered. 


K  SUNDINE'S   CASE. 

Supreme  Judicial  Court  of  Massachusetts,  1914. 

[Reported  218  Mass.  1.] 

Sheldon,  J.  It  is  provided  by  statute  (St.  1911,  c.  751,  Part  III, 
§  17)  that  "if  a  subscriber  enters  into  a  contract,  written  or  oral,  with 
an  independent  contractor  to  do  such  subscriber's  work  .  .  .  and  the  as- 
sociation would,  if  such  work  were  executed  by  employees  immediately 
employed  by  the  subscriber,  be  liable  to  pay  compensation  under  this 
act  to  those  employees,  the  association  shall  pay   to  such  employees 


570 


SUNDINE  S   CASE. 


[chap.  IV. 


any  compensation  which  would  be  payable  to  them  under  this  act" 
if  the  independent  contractor  were  a  subscriber.  By  the  word  "as- 
sociation" is  meant  the  Massachusetts  Employees'  Insurance  Associ- 
ation, Part  V,  §  2,  of  the  same  act;  and  this  insurance  company  is 
under  the  same  liability  that  the  association  would  have  been.  St.  1912, 
c.  571,  §  17.  It  follows  that  the  petitioner  has  the  same  rights  against 
this  insurance  company  as  if  it  had  directly  insured  her  employer  Olsen. 

The  insurer  does  not  deny  this,  but  it  contends  that  the  petitioner's 
injury  did  not  arise  "out  of  and  in  the  course  of"  her  employment  within 
the  meaning  of  Part  II,  §  1,  of  the  act  first  referred  to.  This  is  because 
she  was  injured  at  about  noon,  after  she  had  left  the  room  in  which  she 
worked  for  the  purpose  of  getting  a  lunch,  and  upon  a  flight  of  stairs 
which,  though  affording  the  only  means  of  going  to  and  from  her  work- 
room, was  yet  not  under  the  control  either  of  Olsen,  her  employer,  or 
of  F.  L.  Dunne  and  Company,  for  whose  work  Olsen  was  an  independ- 
ent contractor. 

The  first  contention,  that  she  was  not  in  the  employ  of  Olsen  while 
she  was  going  to  lunch,  cannot  be  sustained.  Her  employment  was 
by  the  week.  It  would  be  too  narrow  a  construction  of  the  contract 
to  say  that  it  was  suspended  when  she  went  out  for  this  merely  tempo- 
rary purpose  and  was  re\'ived  only  upon  her  return  to  the  workroom. 
It  was  an  incident  of  her  employment  to  go  out  for  this  purpose.  Boyle 
V.  Columbian  Fire  Proofing  Co.,  182  Mass.  93,  102.  The  decisions  upon 
similar  questions  under  the  English  act  are  to  the  same  effect.  Blovelt 
V.  Sawyer,  [1904]  1  K.  B.  271,  which  went  on  the  ground  that  the  dinner 
hour,  though  not  paid  for,  was  yet  included  in  the  time  of  employment. 
Moore  v.  Manchester  Liners,  3  B.  W.  C.  C.  527,  where  the  House  of 
lords  reversed  the  decision  of  the  Court  of  Appeal,  reported  in  [1909] 

1  K.  B.  417,  and  held,  following  the  dissenting  opinion  of  Moulton,  L.  J., 
that  a  temporary  absence  by  permission,  though  apparently  of  longer 
duration  than  would  have  been  likely  in  the  case  before  us,  did  not 
suspend  the  employment,  and  that  an  injury  occurring  during  such  a 
temporary  absence,  arose  "out  of  and  in  the  course  of"  the  employ- 
ment.    Gane  r.  Norton  Hill  Colliery  Co.,  2  B.  W.  C.  C.  42,  and  [1909] 

2  K.  B.  539.  Keenan  v.  Flemington  Coal  Co.,  40  Sc.  L.  R.  144.  Mac- 
Kenzie  v.  Coltness  Iron  Co.,  41  Sc.  L.  R.  6. 

Nor  do  we  regard  it  as  decisive  against  the  petitioner  that  she  was  in- 
jured while  upon  stairs  of  which  neither  Olsen  nor  F.  L.  Dunne  and 
Company  had  control,  though  they  and  their  employees  had  the  right 
to  use  them.  These  stairs  were  the  only  means  available  for  going  to 
and  from  the  premises  where  she  was  employed,  the  means  which  she 
practically  was  invited  by  Olsen  and  by  F.  L.  Dunne  and  Company  to 
use.  In  this  respect,  the  case  resembles  Moore  v.  Manchester  Liners, 
ubi  supra;  and  that  case,  decided  under  the  English  act  before  the  pas- 
sage of  our  statute,  must  be  regarded  as  of  great  weight.  McNicol's 
case,  215  Mass.  497,  499.     It  is  true  that  before  the  passage  of  St.  1911, 


SECT.  IV.]  SUNDINE'S   CASE.  571 

c.  751,  the  petitioner  could  not  have  held  her  employer  for  this  injury. 
Hawkes  v.  Broadwalk  Shoe  Co.,  207  Mass.  117.  But  that  now  is  not 
a  circumstance  of  much  importance;  for  one  of  the  purposes  of  our  re- 
cent legislatures  was  to  increase  the  right  of  employees  to  be  compen- 
sated for  injuries  growing  out  of  their  employment. 

It  was  a  necessary  incident  of  the  employee's  employment  to  use  these 
stairs.  We  are  of  opinion  that  according  to  the  plain  and  natural 
meaning  of  the  words  an  injury  that  occurred  to  her  while  she  was  so 
using  them  arose  "out  of  and  in  the  course  of"  her  employment.  The 
decree  of  the  Superior  Court  must  be  affirmed. 

So  ordered. 


572  REX  V.  COMPTON.  [chap.  V. 


CHAPTER   Y. 
PERMITTED   ACTS. 


SECTION  I. 

Duty  to  Act. 

REX    V.   COMPTON. 
Assizes.     1347. 

[Reported  Liber  Assisarum,  97,  pi.  55.] 

H.  DE  CoMPTON  was  indicted,  &c.,  that  he  feloniously  killed  H.  Vescy 
at  C  on  a  certain  day  in  the  fourteenth  3ear  of  the  present  King,  and 
also  for  that  he  received  one  R.,  who  was  outlawed  for  felony,  know- 
ing, &c.,  for  which  he  was  now  arraigned. 

H.  said  that  said  H.  V.  died  in  the  ninth  year  of  the  present  King; 
and  that  said  H.  V.  and  another  were  indicted  in  the  ninth  year  of  the 
present  King,  before  Sir  T.  de  Rokeby,  Sheriff  of  York,  of  divers  felo- 
nies, when  the  sheriff  assigned  the  said  J.  [H.  ?]  de  C.  by  his  commission 
(which  he  exhibited  to  the  court)  to  arrest  and  take  the  said  H.  and 
the  other  thieves ;  and  the  said  H.  de  C.  with  others  came  to  the  said 
place,  and  there  found  the  said  H.  and  the  other  thieves,  and  showed 
thera  their  warrant,  which  the}'  had  to  arrest  them,  and  ordered  them 
to  surrender  ;  and  they  would  not  surrender,  but  defended  themselves, 
and  killed  and  wounded  divers  persons,  and  in  this  tight  H.  was  killed. 
And  we  do  not  think  that  our  Lord  the  King  ought  to  impeach  us  of 
his  death. 

Thorp,  C.  J.  All  shall  be  found  out  by  the  jury.  (And  he  told  them 
all  that  he  had  said.)  Wherefore  we  ask  you  whether  H,  V.  died  in 
the  ninth  year  of  the  present  king  and  not  in  the  fourteenth,  as  the 
indictment  is,  and  if  there  was  no  other  H.  V.  whom  he  killed  in  the 
fourteenth  year,  and  also  if  he  might  have  taken  him  without  killing 
him,  so  that  he  killed  him  of  his  own  malice,  &c.,  and  if  j'ou  find  that, 
speak  of  his  lands  and  goods. 

The  jury  said  that  H.  had  gone  (as  he  said) ,  and  that  there  was  no 
other  H.  V.  than  that  one,  &c.,  and  that  he  could  not  have  taken  him 
in  another  wa}'. 

Thorp.  They  have  acquitted  you  of  this  charge,  and  we  acquit  j-ou. 
And  I  say  well  to  you  that  when  a  man  kills  another  b}'  his  warrant 
he  may  w,ell  avow  the  fact,  and  we  will  freely  acquit  him  without  wait- 


SECT.  I.]  HERBERD'S   CASE.  573 

ing  for  the  King's  pardon  by  his  charter  in  this  case.  And  in  many 
other  cases  a  man  may  kill  another  without  impeachment,  as  if  thieves 
come  to  rob  a  man,  or  to  commit  burglary  in  his  house,  he  may  safely 
kill  them,  if  he  cannot  take  them.  And  note,  how  it  was  with  a 
gaoler  who  came  to  the  gaol  with  a  hatchet  in  his  hand,  and  just  then 
the  prisoners  had  broken  their  irons,  and  were  all  ready  to  have  killed 
him,  and  they  wounded  him  sorely,  but  with  the  hatchet  in  his  hand 
he  killed  two,  and  then  escaped,  &c.  And  it  was  adjudged  in  this 
case  by  all  the  council  that  he  would  not  have  done  well  otherwise,  &c. 
Likewise  he  said  that  every  person  might  take  thieves  in  the  act  of 
larceny,  and  felons  in  the  act  of  felony,  and  if  they  would  not  sur- 
render peaceably,  but  stood  on  their  defence,  or  fled,  in  such  case  he 
might  kill  them  without  blame,  &c. 


HERBERD'S    CASE. 
King's  Bench,   1457. 
[Reported  Y.  B.   35  //.  6,  57,  pi.  3.] 

A  WOMAN  brings  an  Appeal  for  the  death  of  her  husband,  in  the  King's 
Bench,  against  William  Herberd,  Knt.,  Walter  Devers,  Knt.,  and 
several  others.  And  one  of  the  defendants  comes  and  says  that  the 
wife  should  not  have  this  appeal,  for  he  says  that  at  the  Sessions  of  the 
peace  held  at  Hertford  on  a  certain  day  &c.,  before,  &c.,  it  was  presented 
by  twelve  lawful  men  sworn  to  inquire  for  the  King,  &c.,  that  one  J. 
W.  of  Hertford  had  feloniously  killed  one  J.  Vowant  &c.,  and  that  the 
husband  of  the  plaintiff,  for  whose  death  she  has  brought  this  appeal, 
abetted  and  comforted  him  in  committing  the  said  felony,  &c.,  by 
force  ofjvhich  a  warrant  issued  to  the  sherifif  to  take  the  body  of  the 
said  J.  \N.  and  of  this  woman's  husband,  by  force  of  which  the  sheriff 
returned  the  warrant  served,  and  set  them  at  the  bar;  by  force  of  which 
the  said  J.  W.  was  arraigned  for  the  said  felony  and  pleaded  not  guilty, 
and  \y^s  found  guilty,  and  by  force  of  this  he  was  hanged.  And  then 
the  woman's  husband  was  arraigned  and  pleaded  not  guilty,  and  was 
found  guilty,  and  was  sentenced  to  be  hanged :  all  which  he  is  ready  to 
aver,  and  prays  that  it  be  allowed.  And  as  to  the  felony  he  pleads  not 
guilty,  &c. 

Littleton.  This  is  no  plea;  he  ought  to  have  pleaded  7tot  guilty 
generally  for  you  cannot  justify  a  felony.^  .  .  . 

Wangford.  In  cases  where  it  appears  by  the  law  that  one  has  power 
to  kill  another  he  may  justify  the  killing.  As,  if  a  sheriff  or  marshal 
of  this  bench  be  commanded  by  authority  of  law  to  execute  a  man  and 
he  executes  him:  if  an  appeal  be  brought  against  him,  he  may  justify, 

'  Part  of  the  argument  is  omitted.  —  Ed. 


574  TUCK   V.   BELILES.  [CHAP.    V. 

since  it  appears  of  record  that  he  had  power  to  kill  him ;  but  if  a  stranger 
kill  him,  he  could  not  justify,  since  it  appears  of  record  that  he  had  no 
power  to  kill  him.  So  here  he  has  not  alleged  that  he  had  any  power  to 
kill  him,  but  like  the  greatest  stranger  in  the  world,  and  therefore  he 
cannot  have  advantage  of  the  matter  of  record. 

Markam,  J.  The  record  makes  no  mention  who  has  power  to  kill 
him,  for  the  entry  is  only  sus.  per  coll.  and  makes  no  mention  to  whom 
it  is  delivered,  as  to  the  sheriff  or  to  another  to  make  execution;  so  it 
does  not  appear  who  has  power  to  kill  him. 

Bingham,  J.  If  a  sheriff  be  charged  to  hang  a  man  and  he  cuts  off 
his  head,  I  tell  you  it  is  no  felony,  because  he  had  the  power  to  kill  him. 

Pole,  J.  Yes  sir,  it  is  felony,  for  he  had  no  power  to  kill  him,  ex- 
cept according  to  the  judgment,  and  if  he  does  it  otherwise  he  does  it 
as  a  stranger;  and  therefore  it  is  felony. 


TUCK  V.  BELILES. 
Court  of  Appeals  of  Kentucky. 

[Reported  153  Ky.  84S.] 

HoBSON,  C.  J.  On  December  22,  1911,  three  warrants  were  issued 
by  the  judge  of  the  Butler  quarterly  court  against  R.  E.  Tuck,  in  which 
he  was  charged  with  a  breach  of  the  peace,  wilfully  shooting  his  pistol 
in  the  streets  of  Morgantown  and  assault  and  battery  on  his  wife.  The 
warrants  were  placed  in  the  hands  of  C.  V.  Beliles,  who  is  the  sheriff  of 
Butler  County.  Beliles  placed  them  in  the  hands  of  two  of  his  deputies 
who  undertook  tO  execute  them.  They  telephoned  Beliles  that  they 
needed  help,  and  he  and  another  deputy  then  went  to  assist  them  in 
making  the  arrest.  When  they  reached  the  house  where  Tuck  was,  in 
making  the  arrest  one  of  them  shot  Tuck  through  the  left  arm,  inflict- 
ing a  serious  injury.  He  brought  his  suit  against  the  sheriff  on  his 
bond  to  recover  for  his  injury. 

According  to  his  testimony  on  the  trial,  he  was  at  his  home,  and 
went  upstairs  and  was  sitting  on  a  box  examining  some  tickets  which 
he  had  when  he  heard  somebody  walk  in.  He  looked  around  and  a  man 
shot  his  pistol  and  hollered  at  him,  "Throw  up  your  hands."  The 
two  deputies  came  up  the  stairs  and  stood- near  him  while  the  sheriff 
said  to  him,  "They  want  you  up  at  the  judge's  office."  He  said,  "I 
guess  not,  I  have  fixed  all  of  this  with  Mr.  Bradley."  One  of  the  dep- 
uties said,  "Bring  him  on,"  and  he  replied,  "You  just  keep  your 
mouth  out  of  this."  At  this  the  other  deputy  threw  up  his  pistol  and 
shot  him.  Mr.  Bradley  was  the  county  attorney.  He  testified  that 
Tuck  came  to  his  house  that  morning  and  that  he  told  Tuck  to  get  on 
his  mule  and  go  up  to  see  his  brother  and  straighten  up  and  he  would 


SECT.  I.J  TUCK    V.    BELILES.  575 

do  the  best  he  could  for  him  after  he  straightened  up;  that  Tuck  said 
that  he  was  not  going  anywhere,  and  that  he  was  going  to  see  Bill  Tuck, 
and  was  going  to  kill  Ed  Waddle  before  sunset;  that  he  would  kill  them 
as  fast  as  they  came  along.  He  also  told  the  county  attorney  that  he 
would  kill  the  officers,  and  that  he  was  not  going  to  be  arrested.  The 
county  attorney  told  the  sheriff  what  he  had  said  when  he  gave  him 
the  warrants  and  told  him  to  be  careful.  The  two  deputies  who  first 
went  to  the  house  testified  that  they  saw  him  as  they  approached  the 
house,  and  that  he  ran  into  the  house,  and  that  they  then  learned  that 
he  had  arms,  and  telephoned  the  sheriff.  They  did  nothing  more  until 
the  sheriff  came.  The  sheriff's  statement  as  to  what  occurred  when 
he  got  there  is  in  substance  that  he  found  the  door  of  the  house  fas- 
tened, and  after  calling  to  Tuck  repeatedly  and  telling  him  that  he  had 
always  been  his  friend  and  wished  no  trouble,  he  forced  the  door  open; 
that  he  could  not  find  Tuck  on  the  first  floor  of  the  house  and  after 
looking  through  this,  went  upstairs;  that  he  was  not  to  be  seen  anv-where 
upstairs;  that  when  he  got  up  there  he  called  out  as  he  had  below  re- 
peatedly and  finally  he  struck  a  match,  and  looking  over  into  a  closet 
found  Tuck  hidden  there;  that  when  he  found  him  Tuck  said,"  I  want 
you  to  go  away  from  here,  I  am  not  going  to  be  arrested."  He  said 
"Elmwood,  I  have  been  a  friend  to  you,"  and  that  Tuck  replied  with 
an  oath,  and  started  to  make  a  rush  on  them  saving  he  would  kill  every 
one  of  them;  that  after  caUing  on  him  to  stop,  he  drew  his  pistol,  and 
fired,  when  he  could  not  stop  him  in  any  other  way.  The  testimony 
of  the  sheriff  is  corroborated-  not  only  by  the  three  deputies  who  were 
present  but  by  a  number  of  persons  in  the  neighborhood  who  testified 
to  hearing  Tuck  cursing  and  threatening  the  ofiicers  that  he  would 
kill  them.  On  this  evidence  the  jury  found  for  the  defendants.  The 
plaintiff  appeals. 

It  is  insisted  for  the  plaintiff  that  the  sheriff  is  liable  because  he  did 
not  read  the  warrants  to  Tuck;  but  Tuck's  ovm  testimony  shows  that 
he  understood  very  well  what  he  was  arrested  for,  and  he  knew  that  he 
was  resisting  the  sheriff  and  his  deputies.  He  knew  the  sheriff  very  well 
and  kjiew  the  deputies.  He  knew  the  offenses  he  was  charged  with, 
and  knew  the  purpose  for  which  they  had  come  to  arrest  him.  It  is 
true  the  warrants  were  not  read  to  him,  but  he  did  not  give  the  officers 
any  opportunity  to  read  the  warrants.  He  resisted  arrest  as  soon  as 
they  found  him  and  according  to  the  testimony  of  the  officers  immedi- 
ately began  an  attack  upon  them. 

The  court  by  his  instruction  in  substance  told  the  jury  that  they 
should  find  for  the  plaintiff,  unless  they  believed  from  the  evidence 
that  the  plaintiff  resisted  arrest  with  force,  and  in  that  event  the 
officers  had  the  right  to  use  such  force  as  appeared  to  them  in  the  exer- 
cise of  a  reasonable  discretion  to'  be  necessary  to  overcome  the  force 
offered  by  Tuck  and  protect  themselves  at  his  hands,  and  if  they  used 
no  more  force  than  was  necessary  or  apparently  necessary  for  this 


576  PEOPLE    V.   WARREN.  [CHAP.  V. 

purpose,  they  should  find  for  the  defendants.  The  instructions  appear 
to  us  to  state  fairly  the  law  of  the  case.  While  an  officer  has  no  right 
to  kill  a  man  in  order  to  arrest  him  for  a  misdemeanor,  it  is  his  duty  to 
meet  force  with  force,  and  to  use  such  force  as  is  necessary  to  make  the 
arrest.  If  in  using  such  force,  he  is  himself  placed  in  peril,  he  may  use 
such  force  as  is  necessary  for  his  self-protection.  (Read  v.  Com.,  125 
Ky.  126;  Stevens  v.  Com.,  124  Ky.  32.)  The  officer  is  armed  with  the 
authority  of  the  law.  It  is  the  duty  of  all  good  citizens  to  respect  and 
obey  him.  If  an  officer  could  not  meet  force  with  force,  desperadoes 
could  never  be  arrested.  It  is  the  duty  of  the  officer  to  execute  his 
process,  and  when  he  is  resisted  he  must  stand  his  ground  and  meet 
force  with  force.  If  the  proof  for  the  defendant  is  true.  Tuck's  con- 
duct was  entirely  without  excuse. 

The  evidence  of  Tuck's  threats,  made  on  that  morning,  and  his  re- 
peated declarations  that  he  would  not  be  arrested,  were  competent 
to  show  his  state  of  mind,  and  these  threats  having  been  communicated 
to  the  officers,  proof  of  them  was  admissible  in  their  behalf  to  show  the 
grounds  upon  which  they  acted.  On  the  whole  case  we  find  no  sub- 
stantial error  in  the  proceedings.  The  verdict  of  the  jury  is  sustained 
by  the  evidence. 

Judgment  affirmed. 


PEOPLE  V.   WARREN. 
Supreme  Court  of  New  York,  1843. 

[Reported  5  Hill,  440.] 

Certiorari  to  the  Oneida  general  sessions,  where  the  defendant 
was  convicted  of  an  assault  and  battery  upon  one  Johnson,  a  constable. 
Johnson  arrested  the  defendant  on  a  warrant  issued  by  the  inspectors 
of  election  of  the  city  of  Utica  for  interrupting  the  proceedings  at  the 
election  by  disorderly  conduct  in  the  presence  of  the  inspectors. 
(1  R.  S.  137,  §  37.)  The  warrant  was  regular  and  sufficient  upon  its 
face.  The  defendant  resisted  the  officer,  and  for  that  assault  he  was 
indicted.  The  defendant  offered  to  prove  that  he  had  not  been  in  the 
presence  or  hearing  of  the  inspectors  at  any  time  during  the  election, 
and  that  Johnson  knew  it.  The  court  excluded  the  evidence,  and  the 
defendant  was  convicted.  He  now  moved  for  a  new  trial  on  a  bill  of 
exceptions. 

Per  Curiam.  Although  the  inspectors  had  no  jurisdiction  of  the 
subject  matter,  yet  as  the  warrant  was  regular  upon  its  face,  it  was  a 
sufficient  authority  for  Johnson  to  make  the  arrest,  and  the  defendant 
had  no  right  to  resist  the  officer.  The  knowledge  of  the  officer  that  the 
inspectors  had  no  jurisdiction  is  not  important.    He  must  be  governed 


SECT.  I.]  OYSTEAD   V.   SHED.  577 

and  is  protected  by  the  process,  and  cannot  be  affected  by  anything 
which  he  has  heard  or  learned  out  of  it.  There  are  some  dicta  the  other 
way;  but  we  have  held  on  several  occasions  that  the  officer  is  protected 
by  process  regular  and  legal  upon  its  face,  whatever  he  may  have  heard 
going  to  impeach  it. 


OYSTEAD  t.  SHED. 
Supreme  Judicial  Court  of  Massachusetts,  1816. 

[Reported  13  Mass.  520.] 

Trespass  for  breaking  and  entering  the  plaintiff's  dwelling  house, 
taking  and  carrying  away  his  goods,  etc. 

The  defendant  Shed  justified  as  a  deputy  sheriff;  and  the  others, 
as  his  assistants,  pleaded  severally.  The  questions  in  the  case  arose 
on  the  replication  to  the  third  plea  by  them  respectively  pleaded,  in 
which  plea  each  of  the  said  other  defendants  sets  out  at  large  a  capias 
awarded  against  one  Chase,  delivered  to  Shed,  an  officer  having 
authority  to  serve  the  same,  and  alleges  that  the  said  officer  being 
about  to  arrest  Chase,  he  fled  into  the  house  of  the  plaintiff,  who, 
upon  a  demand  by  Shed  for  leave  to  enter  and  arrest  him,  refused 
admission  into  the  house  and  shut  the  outer  door  thereof;  whereupon 
Shed  opened  a  window,  entered  the  house,  and  arrested  Chase;  and 
that  the  defendant,  being  required  by  Shed,  entered  the  house  by  the 
door,  which  was  then  opened,  etc. 

The  replication,  after  protesting  that  the  said  capias  was  never 
awarded,  etc.,  alleges  that  Chase  was  at  the  time,  and  had  been  for 
a  long  time  before,  a  lodger  and  boarder  in  the  house  of  the  plaintiff, 
and  was  quietly  taking  his  repose  there  as  one  of  his  family,  when 
the  officer  forcibly  entered,  etc.,  and  then  traverses  the  flight  of  Chase, 
as  set  forth  in  the  bar. 

To  this  replication  there  is  a  special  demurrer. 

PARgi^R,  C.  J.^  .  .  .  The  fact  alleged  in  the  replication  is,  that  Chase 
was  quietly  reposing  in  thfi^laiotiffia  liouse,  being  a  lodger  and  boarder 
there  when  the  jofficer  entered.  Is  this  of  itself  an  answer  to  the  bar, 
which  avers  that  the  officer  being  about  to  arrest  Chase,  he  fled  into 
the  house? 

This  depends  upon  the  relation  which  Chase  had  to  the  family  of 
the  plaintiff,  for  it  is  very  clear  that  if  the  plaintiff,  or  one  of  his  family, 
had  fled  into  the  house  to  avoid  an  intended  arrest,  the  officer  would 
have  been  liable  in  trespass  for  entering  the  house  forcibly  in  pursuit 
of  him.  It  would  not  be  so,  if  an  arrest  had  been  actually  made,  and 
the  flight  had  taken  place  upon  an  escape. 

^  Part  of  the  opinion,  discussing  a  question  of  pleading,  is  omitted.  —  Ed. 


578  STATE    V.   MAYOR    AND   ALDERMEN    OF    KNOXVILLE,      [CHAP.  V. 

The  authorities  do  not  clearly  show,  what  persons  are  considered  as 
belonging  to  the  family  of  a  householder,  and  so  having  a  right  to  pro- 
tection under  his  castle. 

The  very  learned  judges  Foster,  Hale,  and  Coke,  in  treating  of  the 
inviolability  of  dwelling  houses,  say  that  the  outer  doors  or  windows 
shall  not  be  forced  by  an  officer,  in  the  execution  of  civil  process  against 
the  occupier  or  any  of  his  family,  who  have  their  domicil  or  ordinary 
residence  there:  but  that  the  house  shall  not  be  made  a  sanctury  for 
other  persons:  so  that,  if  a  stranger,  whose  ordinary  residence  is  else- 
where, upon  a  pursuit,  take  refuge  in  the  house  of  another,  the  house 
is  not  his  castle;  and  the  officer  may  break  open  the  doors  or  windows 
in  order  to  execute  his  process :  and  if  one,  upon  escape  after  an  arrest, 
flee  into  his  own  house,  it  shall  not  protect  him,  etc.  According  to 
these  principles,  not  only  the  children  and  the  domestic  servants  of 
the  occupier  are  of  his  family,  and  so  entitled  to  protection;  but  also 
permanent  boarders,  or  those  who  have  made  the  house  their  home, 
may  properly  be  considered  as  a  part  of  the  family. 

The  purpose  of  the  law  is,  to  preserve  the  repose  and  tranquillity 
of  families  within  the  dwelling  house:  and  these  would  be  as  much 
disturbed  by  a  forcible  entry  to  arrest  a  boarder  or  a  servant,  who  have 
acquired,  by  contract  express  or  implied,  a  right  to  enter  the  house 
at  all  times,  and  to  remain  in  it  as  long  as  they  please,  as  if  the  object 
were  to  arrest  the  master  of  the  house  or  his  children.  A  stranger,  or 
perhaps  a  visitor,  would  not  enjoy  the  same  protection :  for  as  they  have 
acquired  no  right  to  remain  in  the  house,  if  the  occupant  should  refuse 
admission  to  the  officer,  after  his  purpose  and  his  authority  were  made 
known,  the  law  would  consider  him  as  conspiring  with  the  party  pur- 
sued, to  screen  him  from  arrest,  and  would  not  allow  him  to  make  his 
house  a  place  of  refuge. 


STATE   V.   MAYOR   AND   ALDERMEN   OF   KNOXVILLE. 

Supreme  Court  of  Tennessee.     1883. 

[Reported  12  Lea,  146.] 

Freeman,  J.,  delivered  the  opinion  of  the  court.^ 

It  appears  from  this  record  that  in  the  latter  part  of  the  year  1882, 
and  first  of  1883,  the  small-pox,  as  an  epidemic,  prevailed  to  a  con- 
siderable extent.  The  city  of  Knoxville,  as  well  as  the  county,  thought 
it  their  duty,  through  their  authorized  agencies,  to  take  active  measures 
to  relieve  as  well  as  prevent  the  spread  of  the  disease  both  in  the  city 
and  the  surrounding  country.  To  tliis  end  a  small-pox  hospital  was 
estabhshed  at  the  fair-grounds,  about  two  miles  from  the  city,  with  suita- 

^  Part  of  the  opinion  is  omitted. 


SECT.  I.]      STATE   V.   MAYOR   AND   ALDERMEN   OF   KNOXVILLE.  5?0 

ble  buildings  for  receiving  infected  patients,  and  two  phj'sicians,  Drs. 
Hudgins  and  Shaw,  employed,  tlie  one  by  tlie  city,  tlie  otlier  by  the 
county,  to  attend  patients  suffering  with  the  disease.  Among  the  pre- 
cautionary measures  taken  to  prevent  the  spread  of  the  plague,  the 
clothing,  beds,  and  bedsteads  used  by  persons  who  had  the  disease,  and 
either  recovered  or  died,  were  directed  to  be  burnt,  no  doubt  under  the 
direction  of  the  attending  physicians.  This,  we  take  it,  was  done  regu- 
larly and  frequently  for  some  months,  as  often  as  occasion  required. 
The  fair-ground's  property  consisted  of  between  sixty  and  sixty-five 
acres  of  land,  the  building  being  within  this  property,  and  the  infected 
articles  burnt  on  these  grounds,  probably  in  pits  dug  for  the  purpose. 
The  burning  seems  to  have  been  some  four  hundred  yards  from  the 
nearest  houses,  but  there  appear  to  have  been  numerous  dwellings 
occupied  about  that  distance,  and  farther  off,  but  still  liable,  more  or 
less  to  be  affected  by  the  smoke  and  the  scent  from  the  burning  cloth- 
ing, etc.  That  this  at  times  was  more  or  less  offensive,  is  probable,  if 
not  certain.  For  a  nuisance,  the  result  of  this  burning  and  the  unpleas- 
ant effects  of  the  smoke  thus  generated  and  disseminated,  the  defendants 
are  indicted. 

The  jury  have  found  the  defendants  guilty,  and  on  the  facts,  that  is 
of  the  existence  of  the  smoke,  and  of  its  rendering  the  occupation  of 
the  houses  of  persons  living  hard  by  uncomfortable,  and  the  air  less 
pure  temporarily  than  otherwise  would  have  been  the  case  from  the 
nature  of  their  location,  there  is  no  ground  on  which  this  court  could 
reverse  the  finding  of  facts  for  want  of  testimony  to  sustain  it. 

The  question  is,  whether  this  finding  was  under  a  correct  statement 
of  the  law  by  the  court  below,  and  whether  there  was  a  sufficient  Justi- 
iication  and  authority  for  what  was  done  ;  whether  his  Honor  gave 
defendants  the  benefit  of  the  rules  of  law  tending  to  show  such  justifi- 
cation and  authority  for  their  acts,  which  are  not  of  themselves  denied 
or  seriously  controverted. 

The  proof  ver}'  definitely  tended  to  show  that  burning  the  articles 
mentioned  was  the  best  means  known  of  preventing  the  spread  of  infec- 
tion, if  not  the  only  certain  means  of  doing  so,  that  it  was  the  uniform 
practice  in  hospitals  where  such  diseases  were  being  treated,  and  recog- 
nized as  the  accredited  mode  recommended  and  endorsed  b}-  the  best 
lights  of  the  medical  profession. 

If  this  be  so,  then  the  simple  question  is,  whether  parties  using  such 
means  so  accredited,  in  good  faith,  shall  be  held  criminally  liable  if  they 
should  produce  temporary  inconvenience  to  other  parties  near  by  ;  for 
this  is  the  substance  of  the  request  refused  by  his  Honor. 

The  loss  to  the  individuals  was  onl}'  a  temporar}-  one,  b}-  having  the 
air  for  a  time  impregnated  with  smoke,  offensive  though  it  was  ;  yet  if 
this  was  done  in  order  to,  and  did  reasonabl}-  tend  to,  prevent  the 
spread  of  a  loathsome  and  dangerous  disease,  by  which  the  lives  of 
from  twenty-five  to  fift}^  per  cent  of  persons  attacked  are  liable  to  die,  as 
one  phj'sician  swears  in  this  case,  then  it  is  too  clear  to  doubt  that  the 


580  PEOPLE    V.   FITZGERALD,  [CHAP.  V. 

interest  of  the  life  of  many  cannot  be  permitted  to  be  perilled  that  others 
may  enjoy  the  air  untainted  b}'  smoke  from  clothing  infected  by  the 
disease  being  burned  at  a  reasonably  safe  distance  from  their  dwellings. 
If  you  ma}'  rightfully  destro}'  the  house  in  which  a  man  dwells  in  order 
to  prevent  the  spread  of  a  fire  or  the  ravages  of  a  pestilence,  it  follows 
you  may  much  more  destroy  for  a  time  the  salubrity  of  the  air,  provided 
it  shall  tend  reasonably  to  the  result  demanded  by  the  public  interest. 

We  do  not  deem  it  necessary  to  enlarge  on  such  a  proposition. 

The  rule  applicable  to  such  a  case  is  that,  if  the  act  was  done  by 
public  authority  or  sanction,  and  in  good  faith,  and  was  done  for  the 
public  safety  and  to  prevent  the  spread  of  the  disease,  and  such  means 
used  as  are  usually  resorted  to  and  approved  by  medical  science  in  such 
cases,  and  was  done  with  reasonable  care  and  regard  for  the  safet}'  of 
others,  then  the  parties  were  justified  in  what  they  did,  and  the  parties 
inconvenienced  could  not  complain,  nor  could  the  state  enforce  a  crimi- 
nal liabilit}'  for  results  of  temporarj-  inconvenience  or  unpleasantness 
that  accrue  from  the  use  of  such  proper  and  accredited  means  for  the 
safety  of  the  community  against  the  spread  of  disease. 

The  theory  of  his  Honor  is  the  opposite  of  this,  and  is  erroneous. 
Let  the  judgment  be  reversed  and  the  case  remanded  for  a  new  trial. 


\W^;^^  ^v>>'-^     ?         ^  PEOPLE  V.  FITZGERALD. 


r>'^^ 


■>c 


— ^      Court  of  Appeals,  New  York,  1887. 

[Reported  105  N.  Y.  146.] 

,^ii  Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  fourth  judicial  department,  entered  upon  an  order  made  Jan- 
uary 11,  1887,  which  affirmed  a  judgment  of  the  Court  of  Oyer  and 
V  Terminer  of  the  county  of  Chemung,  entered  upon  a  verdict  convicting 


•     v^V^        ^^^  defendant  of  the  crime  of  body  stealing. 
C-         t%^       '^^^  facts,  as  stated  in  the  dissenting  opinion  of  Hardin,  J.,  in  the 
V     ivx court  below,  are  as  follows:  General  Ir\ane  died  in  the  city  of  San 
,j,A^'^^^   Francisco  on  the  night  of  November  12,  1882,  suddenly,  ha\'ing  during 
^ '  the  day  been  out  gunning,  returning  to  his  home  in  the  evening,  after 

Ai^'  ^  partaking  of  a  light  repast,  consisting  of  tea,  eggs,  cold  meat,  and 

bread  and  butter,  prepared  by  his  wife  Phoebe,  who  with  their  daugh- 
ter, Mrs.  Merkle,  were  occupying  apartments  together.  Soon  after 
partaking  of  the  refreshments  he  became  distressed  and  made  com- 
plaints of  internal  pains.  The  daughter  left  for  a  physician,  and,  upon 
returning,  they  found  that  death  had  taken  place.  The  remains  were 
taken  that  night  to  the  rooms  of  an  undertaker  and  they  were  sub- 
sequently embalmed,  and  on  the  fourth  of  December  were  conveyed 


SECT.  I.] 


PEOPLE   V.   FITZGERALD. 


581 


by  the  widow  and  daughter  to  the  city  of  Elmira,  where  they  were 
interred  in  Woodlawn  Cemetery. 

About  a  year  after  the  death  inquiry  was  instituted  as  to  the  cause 
thereof,  and  the  defendant  employed  a  detective  named  Nealson,  who 
visited  the  city  of  Elmira,  and  returned  to  San  Francisco  and  made 
a  report  to  the  defendant.^ 

The  defendant  and  Nealson  \-isited  the  office  of  Dr.  Reilly,  the  coro- 
ner of  the  county  of  Chemung,  and  held  a  conversation  in  regard  to 
the  circumstances  attending  the  death  of  the  deceased.  After  that 
interview  Coroner  Reilly  determined  to  proceed  in  the  premises.  He 
\nsited  Nathan  Baker,  superintendent  of  Woodlawn  Cemetery,  at  his 
house  and  said  to  him,  "That  he  had  evidence  to  satisfy  him  that  a 
wrong  had  been  perpetrated,  or  sufficient  to  warrant  him  in  making 
an  examination  of  the  body  of  General  Irvine.  .  .  .  That  he  had  suffi- 
cient grounds  of  acting  and  he  asked  Baker,  the  superintendent,  to 
act,"  showing  him  one  of  the  affidavits  and  stating  that  he  had  others. 
Thereupon  the  superintendent  determined  to  act  in  the  premises  and 
facilitate  the  proceedings  in  behalf  of  the  coroner.  Thereupon  direc- 
tions were  given  Abbott,  the  sexton,  to  open  the  grave  and  remove 
the  remains  to  the  vault  in  the  cemetery  for  the  purpose  of  an  examina- 
tion. 

Reilly,  the  coroner,  also  applied  to  Dr.  Wey  to  become  one  of  two 
physicians  to  make  the  examination,  and  on  the  evening  of  the  eighth 
of  April  Reilly  \'isited  the  office  of  Wey,  with  Nealson,  avowdng  that  he 
had  full  authority  in  the  premises  "to  conduct  an  examination  and 
have  an  examination  made  by  the  physicians."  The  hour  was  fixed 
for  an  examination  at  ten  the  next  morning  and  Reilly  informed  Wey 
that  he  would  "  notify  Dr.  Squires  .  .  .  and  we  might  expect  to  meet 
at  the  recei\ing  vault  in  Woodlawn  Cemetery"  at  ten  the  next  morn- 
ing. Accordingly  they  met  the  next  morning  at  the  receiving  vault 
in  Woodlawn  Cemetery,  where  the  physicians  found  Coroner  Reilly 
and  Nealson  and  Baker  and  Abbott.  The  body  was  found  lying  in  a 
coffin  or  casket  on  the  floor  of  the  recei\dng  vault.  The  coroner  made 
a  minute  of  the  nature  of  the  covering  of  the  coflSn  and  its  handles  and 
the  plate  and  the  descriptions  of  every  other  matter  connected  there- 
with. Drs.  Wey  and  Squires  raised  the  head  and  shoulders  of  the  body 
and  after  carefully  scrutinizing  the  face  and  the  coroner  making  a 
minute  thereof,  a  careful  examination  was  made  of  the  head,  and  the 
stomach  and  duodenum,  and  certain  other  parts  of  the  body  were  re- 
moved and  delivered  to  Dr.  Reilly,  who  placed  them  in  a  vessel  he  had 
prepared  for  that  purpose. 

After  the  examination  the  coroner  went  over  to  the  house  of  Abbott, 
the  sexton,  in  the  cemetery  grounds,  where  Baker  suggested  the  pro- 
priety of  having  a  coroner's  jury  and  Wey  replied :  "  It  is  too  late  for 
such  a  proceeding." 

'  The  statement  of  facts  has  been  abridged.  —  Ed. 


lo 


532  PEOPLE  V.   FITZGERALD.  [CHAP.  V. 

No  Jury  was,  in  fact,  sworn  to  hold  an  inquest.  The  remains  were 
recoffined  and  returned  to  the  grave,  except  the  parts  removed  there- 
from as  already  stated. 

Rapallo,  J.  The  facts  of  this  extraordinary  case  are  fully  stated 
in  the  dissenting  opinion  of  Hardin,  J.,  at  General  Term.  We  should 
content  ourselves  with  concurring  in  that  opinion,  were  it  not  that  it 
simply  orders  a  new  trial  for  errors  in  the  charge,  for  refusals  to  charge, 
while  we  think  that  it  should  have  gone  farther  and  have  held  that  the 
facts  of  the  case  did  not  estabhsh  a  crime  punishable  under  the  statute 
against  body  stealing  (Penal  Code,  §311),  under  which  the  prisoner 
was  indicted  and  convicted,  and  which  is  in  the  following  words: 
"Sec.  311.  A  person  who  removes  the  dead  body  of  a  human  being, 
or  any  part  thereof,  from  a  grave,  vault,  or  other  place  where  the  same 
has  been  buried,  or  from  a  place  where  the  same  has  been  deposited 
while  awaiting  burial,  without  authority  of  law,  with  intent  to  steal 
the  same,  or  for  the  purpose  of  dissection,  or  for  the  purpose  of  procur- 
ing a  reward  for  the  return  of  the  same,  or  from  malice  or  wantonness, 
is  punishable  by  imprisonment  for  not  more  than  five  years,  or  by  a 
fine  not  exceeding  one  thousand  dollars,  or  both." 

This  statute  describes  every  kind  of  "body  stealing"  known  to 
the  law.  The  addition  inserted  in  the  Penal  Code,  "  or  for  the  purpose 
of  obtaining  a  reward  for  the  same,"  was  the  only  substantial  change 
made  since  the  Re\'ised  Statutes,  in  the  definition  of  this  heinous  crime. 

The  intent  of  the  statute  is  manifest.  It  certainly  was  not  intended 
cri  piKCi^"'"  iq  apply  to  exhumations  made  by  legally  constituted  public  authorities 
for  the  purpose  of  ascertaining  whether  crime  has  been  committed  in 
producing  the  death  of  the  person  whose  body  is  exhumed.  When 
the  exhumation  is  made,  not  secretly,  but  publicly,  on  open  applica- 
tion to  the  officer  of  justice  charged  with  the  duty  of  inquiring  into  the 
cause  of  death  of  any  person  whose  body  is  brought  within  his  juris- 
diction, it  is  a  total  misapplication  of  the  statute  against  body  stealing 
to  use  it  for  the  purpose  of  imposing  its  punishment  on  all  persons  con- 
cerned in  the  exhumation,  in  case  any  proceedings  of  the  officer,  under 
whose  direction  it  was  made,  should  be  found  to  be  irregular. 

The  irregularity  alleged  in  this  case  in  the  conduct  of  the  coroner 
is  that  he  did  not  impanel  a  jury  before  he  ordered  the  post  mortem 
examination  to  be  made  by  the  physicians  whom  he  summoned  for  the 
purpose.  A  sufficient  number  of  persons  to  form  a  jury  was  assembled 
by  direction  of  the  coroner,  but  the  jury  was  not  drawn  and  impaneled. 
I  refer  to  the  opinion  of  Judge  Hardin  as  correctly  stating  the  facts, 
which  we  have  verified  by  an  examination  of  the  testimony. 

The  point  of  law  is  debatable  whether  a  j^ost  mortem  should  take 
place  before  the  coroner  has  impaneled  a  jury.  But  it  is  settled  that 
the  post  mortem  should  not  be  in  the  presence  of  the  jury,  and  that 
they  are  to  be  instructed  by  the  testimony  of  the  physicians  who  are 
designated  by  the  coroner  to  make  it.     The  dissection  by  order  of  the 


J  f^i 


SECT.  I.]  axtell's  case.  583 

coroner  is   expressly   authorized.      (Penal   Code,    §  308;   Crisfield   v. 
Ferine,  15  Hun,  202;  affirmed,  81  N.  Y.  622.) 

If,  as  in  England  at  one  time,  the  findings  of  the  coroner's  jury  were 
to  stand  as  an  indictment  by  a  grand  jury,  some  point  might  be  made 
on  behalf  of  the  accused,  as  to  the  validity  of  the  inquest  in  such  a 
case  as  this.  But  to  resort  to  those  questions  for  the  purpose  of  sup- 
porting an  indictment  for  body  stealing,  under  the  circumstances  of 
this  case,  is  quite  unreasonable.  In  the  present  case  the  defendant 
communicated  to  the  coroner,  in  the  form  of  affidavits  (whether  legally 
authenticated  or  not  is  immaterial)  information  which  should  have  in- 
duced any  magistrate,  not  neglectful  of  his  duty,  to  believe  that  he 
ought  to  investigate  the  matter  presented  to  him.  Those  affida\'its 
made  a  strong  case  to  lead  the  coroner  to  believe  that  a  murder  had 
been  committed,  and  that  an  examination  of  the  body,  which  was  wathin 
his  jurisdiction,  would  disclose  the  fact.  The  defendant  sought  an 
examination  of  the  body.  She  asked  the  coroner  to  do  his  duty,  and 
to  examine  the  body.  Whatever  motives  may  have  influenced  her, 
no  one  can  suppose  that,  however  unfounded  her  belief  might  have 
been,  there  was  not  sufficient  in  the  papers  she  presented  to  the  coroner, 
to  justify  his  action,  and  there  is  no  pretense  that  the  affidavit  of  Dr. 
Wooster,  which  she  produced,  had  been  in  any  manner  influenced  by 
her.  Her  silence  during  several  years  after  the  death  of  General  Ir\'ine, 
is  the  main  argument  against  the  bona  fides  of  her  charge,  and  it  is 
said  that  her  desire  was  not  so  much  the  punishment  of  crime,  as  to 
obtain  some  pecuniary  advantage  for  herself  by  making  defamatory 
charges.  However  this  may  be,  if  she  committed  a  'OTong,  it  was  not 
the  crime  of  body  stealing,  and  on  this  ground  the  con\'iction,  and  the 
judgment  of  the  General  Term  affirming  it,  should  be  reversed  and  the 
prisoner  discharged. 

All  concur. 

Judgment  reversed. 


AXTELL'S  CASE. 
All  the  Judges  or  England,  1660. 

[Reported  J.  Kel.  13.] 

Memorandum,  That  upon  the  tryal  of  one  Axtell,  a  soldier,  who 
commanded  the  guards  at  the  king's  tryal,  and  at  his  murder;  he  justi- 
fied that  all  he  did  was  as  a  soldier,  by  the  command  of  his  superiour 
Officer,  whom  he  must  obey  or  die.  It  was  resolved  that  was  no  excuse, 
for  his  Superiour  was  a  Traitor,  and  all  that  joyned  with  him  in  that 
Act  were  Tray  tors,  and  did  by  that  approve  the  Treason;  and  where 
the  command  is  Traiterous,  there  the  Obedience  to  that  Command  is 
also  Traiterous. 


584  UNITED  STATES  V.   CLAEK.  [CHAP.  V. 


UNITED   STATES   v.   CLARK. 
U.  S.  Circuit  Court,  E.  Dist.  Michigan.     1887. 

[Reported  31  Federal  Reporter,  710.] 

Brown,  J.  In  view  of  the  fact  that  this  was  a  homicide  committed 
b}'  one  soldier,  in  the  performance  of  his  alleged  dut}',  upon  another 
soldier,  within  a  military  reservation  of  the  United  States,  I  had  at  first 
some  doubt  whether  a  civil  court  could  take  cognizance  of  the  case  at 
all ;  but,  as  crimes  of  this  nature  have  repeatedly  been  made  the  subject 
of  inquiry  by  civil  tribunals,  I  have  come  to  the  conclusion  that  I  ought 
not  to  decline  to  hear  this  complaint.  Indeed,  it  is  difficult  to  see  how 
I  could  refuse  to  do  sr»  without  abdicating  that  supremacy  of  the  civil 
power  which  is  a  fundamental  principle  of  the  Anglo-Saxon  polity. 
While  there  is  no  statute  expressl}-  conferring  such  jurisdiction,  there 
is  a  clear  recognition  of  it  in  the  fifty-ninth  article  of  war,  which  pro- 
vides that  "  when  any  officer  or  soldier  is  accused  of  a  capital  crime, 
or  of  any  oflfence  against  the  person  or  property'  of  any  citizen  of  any 
of  the  United  States,  which  is  punishable  b}-  the  laws  of  the  land,  the 
commanding  officer,  and  the  officers  of  the  regiment,  troop,  battery, 
corapan}',  or  detachment  to  which  the  person  so  accused  belongs,  are 
required  (except  in  time  of  war),  upon  application  duly  made  by  or  in 
behalf  of  the  party  injured,  to  use  their  utmost  endeavors  to  deliver 
him  over  to  the  civil  magistrate,  and  to  aid  the  officers  of  justice  in 
apprehending  him  and  securing  him,  in  order  to  bring  him  to  trial." 
This  article  makes  no  exception  of  crimes  committed  by  one  soldier 
upon  another,  nor  of  cases  where  there  is  concurrent  jurisdiction  in  the 
military  courts.  Tytler,  in  his  work  upon  MiUtary  Law,  saj-s :  "The 
martial  or  militarj'  law,  as  contained  in  the  mutinj'  act  and  articles  of 
war,  does  in  no  respect  supersede  or  interfere  with  the  civil  or  munici- 
pal laws  of  the  realm.  .  .  .  Soldiers  are,  equally  with  all  other  classes  of 
citizens,  bound  to  the  same  strict  observance  of  the  laws  of  the  country, 
and  the  fulfilment  of  all  their  social  duties,  and  are  alike  amenable 
to  the  ordinary  civil  and  criminal  courts  of  the  countiy  for  all  oflfences 
against  those  laws,  and  breaches  of  those  duties." 

In  the  case  of  U.  S.  v.  Cornell,  2  Mason,  61,  91,  Mr.  Justice  Story 
took  cognizance  of  a  murder  committed  b}-  one  soldier  upon  another  in 
Fort  Adams,  Newport  harbor.  The  case  was  vigorously  contested, 
and  the  point  was  made  that  the  State  courts  had  jurisdiction  of  the 
offence,  but  there  was  no  claim  that  there  was  not  jurisdiction  in  some 
civil  tribunal.  A  like  case  was  that  of  a  murder  committed  in  Fort 
Pulaski,  at  the  mouth  of  the  Savannah  River,  and  tried  in  1872  before 
Mr.  Justice  Woods  and  Judge  Erskine.  U.  S.  v.  Carr,  1  Woods,  480. 
No  question  was  raised  as  to  the  jurisdiction.     The  subject  of  the  civil 


SECT.  I.]  UNITED    STATES   V.   CLAKK.  585 

responsibility  of  the  arm^y  was  very  carefully  considered  by  Attorney- 
General  Gushing,  in  Steiner's  Case,  6  Ops.  Atty.-Gen.  413,  and  the 
conclusion  reached  that  an  act  criminal  both  by  military  and  general 
law  is  subject  to  be  tried  either  by  a  military  or  civil  court,  and  that  a 
conviction  or  acquittal  by  the  civil  authorities  of  the  offence  against 
the  general  law  does  not  discharge  from  responsibility  for  the  military 
offence  involved  in  the  same  facts.  The  converse  of  this  proposition  is 
equall}'  true. 

The  character  of  the  act  involved  in  this  case  presents  a  more  seri- 
ous question.  The  material  facts  are  undisputed.  There  is  no  doubt 
that  the  deceased  was  killed  by  the  prisoner  under  the  performance 
of  a  supposed  obligation  to  prevent  his  escape  by  any  means  in 
his  power.  There  is  no  evidence  that  the  prisoner  fired  before  the 
necessity  for  his  doing  so  had  become  apparent.  Stone  was  called 
upon  several  times  to  halt,  with  a  hail  by  the  quartermaster  sergeant 
that  there  was  "  a  load  after  him."  Duff,  his  nearest  pursuer,  was  not 
gaining  upon  him,  and  in  another  half-minute  he  would  have  scaled  the 
two  fences  between  him  and  the  highwa}-,  and  would  probably  have 
been  lost  in  the  houses  that  lie  on  the  other  side  of  the  street.  A  court 
of  inquiry,  called  for  the  purpose  of  fully  investigating  the  circum- 
stances, was  of  the  opinion  that  if  Clark  had  not  performed  liis  duty 
as  efficiently  as  he  did,  by  firing  on  deceased,  he  certainly  would  have 
effected  his  escape ;  and  found  that  no  further  action  was  necessar}'  in 
the  case.  The  prisoner  and  the  deceased  had  always  been  good  friends, 
and  it  is  at  least  doubtful  whether  Clark  recognized  him  at  the  time  of 
firing  the  fatal  shot.  The  prisoner  has  heretofore  borne  a  most  excellent 
reputation,  was  never  court-martialled  nor  punished,  and  was  pronounced 
by  all  the  witnesses  who  testified  upon  the  subject  to  be  an  exceptionally 
good  soldier.  There  is  not  the  slightest  reason  to  suppose  that  he  was 
not  acting  in  obedience  to  what  he  believed  to  be  his  duty  in  the 
premises.  There  was  some  conflicting  testimony  as  to  whether  he  was 
standing  or  kneeling  at  the  time  he  fired,  but  I  am  not  able  to  see  its 
materialit}'.  If  he  was  authorized  to  shoot  at  all,  he  was  at  liberty  to 
take  such  position  as  would  insure  the  most  accurate  aim,  whether  his 
object  was  to  hit  the  deceased  in  the  leg  or  in  the  body.  Clark  says 
that  he  aimed  low,  for  the  purpose  of  merely  disabling  him,  but,  owing 
to  a  sudden  descent  in  the  ground,  the  shot  took  effect  in  the  back 
instead  of  the  leg.  For  the  purpose  of  this  examination,  however,  I  am 
bound  to  presume  that  he  intended  to  kill,  as  a  man  is  always  presumed 
to  intend  the  natural  and  probable  consequences  of  his  acts.  The  case, 
then,  reduces  itself  to  the  naked  legal  proposition  whether  the  prisoner 
is  excused  in  law  in  killing  the  deceased. 

The  general  rule  is  well  settled,  by  elementary  writers  upon  criminal 
law,  that  an  officer  having  custody  of  a  person  charged  with  felony  may 
take  his  life,  if  it  becomes  absolutelj'  necessary  to  do  so  to  prevent  his 
escape ;  but  he  may  not  do  this  if  he  be  charged  simply  with  a  misde- 
meanor ;  the  theory  of  the  law  being  that  it  is  better  that  a  misdemean- 


586 


UNITED   STATES   V.   CLARK. 


[chap. 


ant  escape  than  that  human  life  be  taken.  I  doubt,  however,  whether 
this  law  would  be  strictly  applicable  at  the  present  day.  Suppose,  for 
example,  a  person  were  arrested  for  petit  larceny,  which  is  a  felony  at 
the  common  law,  might  an  officer  under  any  circumstances  be  justified 
in  killing  him?  I  think  not.  The  punishment  is  altogether  too  dispro- 
portioned  to  the  magnitude  of  the  offence.  Perhaps,  under  the  statute 
of  this  state,  2  How.  St.  §  9430,  wherein  a  felony  is  "  construed  to  mean 
an  offence  for  which  the  offender,  on  conviction,  shall  be  liable  by  law 
to  be  punished  by  death,  or  by  imprisonment  in  the  state  prison,"  the 
principle  might  still  be  applied.  If  this  statute  were  applicable  to  this 
case,  it  would  operate  as  a  justification,  since  Stone  had  been  convicted 
and  sentenced  to  hard  labor  in  a  military  prison.  Under  the  recent 
case  o^  Ex  parte  Wilson,  114  U.  S.  417,  5  Sup.  Ct.  Rep.  935,  it  was 
adjudged  by  the  Supreme  Court,  upon  full  consideration,  that  a  crime 
punishable  by  imprisonment  for  a  term  of  years  at  hard  labor  was  aa 
"infamous  crime,"  within  the  meaning  of  the  Constitution. 

Manifestly,  however,  the  case  must  be  determined  by  different  con- 
siderations. Stone  had  been  court-martialled  for  a  military  offence,  in 
which  there  is  no  distinction  between  felonies  and  misdemeanors.  His 
crime  was  one  wholly  unknown  to  the  common  law,  and  tlie  technical 
definitions  of  that  law  are  manifestl}'  inappropriate  to  cases  which  are 
not  contemplated  in  the  discussion  of  common-law  writers  upon  the  sub- 
ject. We  are  bound  to  take  a  broader  view,  and  to  measure  the  rights 
and  liabilities  of  the  prisoner  by  the  exigencies  of  the  military  service, 
and  the  circumstances  of  the  particular  case.  It  would  be  extremely 
unwise  for  the  civil  courts  to  la}-  down  general  principles  of  law  which 
would  tend  to  impair  the  efficiency  of  the  military  arm,  or  which  would 
seem  to  justifj'  or  condone  conduct  prejudicial  to  good  order  and  mili- 
tary discipline.  An  arm}' is  a  necessit}'  —  perhaps  I  ought  to  say  an 
unfortunate  necessity  —  under  every  system  of  government,  and  no 
civilized  state  in  modern  times  has  been  able  to  dispense  with  one. 
To  insure  efficiency,  an  army  must  be,  to  a  certain  extent,  a  despotism. 
Each  officer,  from  the  general  to  the  corporal,  is  invested  with  an  arbi- 
trary power  over  those  beneath  him,  and  the  soldier  who  enlists  in  the 
army  waives,  in  some  particulars,  his  rights  as  a  civilian,  surrenders 
his  personal  liberty  during  the  term  of  his  enlistment,  and  consents  to 
come  and  go  at  the  will  of  his  superior  officers.  He  agrees  to  become 
amenable  to  the  military'  courts,  to  be  disciplined  for  offences  unknown 
to  the  civil  law,  to  relinquish  his  right  of  trial  by  jury,  and  to  receive 
punishments  which,  to  the  civilian,  seem  out  of  all  proportion  to  the 
magnitude  of  the  offence. 

The  articles  of  war,  which  he  takes  an  oath,  upon  his  enlistment,  to 
observe,  are  in  fact  a  military  code  of  Draconic  severity,  and  authorize 
harsh  punishments  for  offences  which  seem  to  be  of  a  trivial  nature. 
Thus,  by  the  articles  of  war,  all  the  following  crimes  are  punishable  by 
death,  or  such  other  punishment  as  a  court-martial  may  direct :  strik- 
ing a  superior  officer;  drawing  or  lifting  up  a  weapon,  or  offering  any 


SECT,  I.]  UNITED    STATES   V.   CLARK.  587 

violence  against  him  ;  or  disobeying  any  lawful  command.  Article  21. 
Exciting  or  joining  in  any  mutiny  or  sedition.  Article  22.  Failing 
to  use  liis  utmost  endeavors  to  suppress  such  mutiny  or  sedition,  or 
failing  to  give  information  thereof  to  his  commanding  officer.  Article  23. 
A  sentinel  sleeping  upon  his  post  or  leaving  it  before  he  is  relieved. 
Article  39.  Occasioning  false  alarms  in  camp  or  quarters.  Article  41. 
Misbehaving  himself  before  the  enemy,  running  away,  or  shamefully 
abandoning  any  post  whicii  he  is  commanded  to  defend  ;  speaking 
words  inducing  others  to  do  the  like  ;  casting  away  his  arms  or  ammu- 
nition, or  quitting  his  post  or  colors  to  plunder  or  pillage.  Article  42. 
Compelling  the  commander  of  any  post  to  surrender  it  to  the  enemy, 
or  to  abandon  it.  Article  43.  Making  known  the  watchword  to  any 
person  not  entitled  to  receive  it,  or  giving  the  watchword  different  from 
that  which  he  has  received.  Article  44.  Relieving  the  enemy  with 
money,  victuals,  or  ammunition,  or  hrirhoring  or  protecting  an  enemy. 
Article  45.  Holding  correspondence  or  giving  intelligence  to  an  enemy. 
Article  46.  Deserting  in  time  of  war.  Article  47.  Advising  or  per- 
suading aiiotlier  to  desert  in  time  of  war.  Article  51.  Doing  violence  to 
any  person  bringing  provisions  or  other  necessaries  to  camp  or  quarters 
of  troops  in  foreign  parts.  Article  56.  Forcing  a  safeguard  in  a  foreign 
territory  or  during  a  rebellion.  Article  57.  !Some  of  these  articles  are 
applicable  only  to  a  state  of  war,  but  some  of  them  treat  of  offences 
which  may  equally  well  be  committed  in  time  of  peace.  Besides  these, 
there  are  a  number  of  minor  offences  punishable  as  a  court-martial  may 
direct,  and  a  general  and  very  sweeping  article  (No.  62)  providing  that 
all  crimes  not  capital,  and  all  disorders  and  neglects  to  the  prejudice  of 
good  order  and  military  discipline,  shall  be  justiciable  by  a  court-martial, 
and  punishable  at  the  discretion  of  the  court. 

Now,  while  the  punishment  in  Stone's  case  seems  to  the  civilian 
quite  disproportionate  to  the  character  of  his  offence,  as  charged  in 
the  specifications,  which  was  no  more  nor  less  than  the  utterance  of  a 
malicious  falsehood,  when  gauged  by  the  penalties  attached  by  Congress 
to  the  several  offences  contained  in  the  articles  of  war,  it  does  not  seem 
so  excessive  ;  at  any  rate,  it  was  the  lawful  judgment  of  a  court  having 
jurisdiction  of  his  case,  and  it  was  his  duty  to  abide  by  it,  or  pursue 
his  remedy  in  the  method  provided  b}'  law.  In  seeking  to  escape,  the 
deceased  was  undoubtedly  guilty  of  other  conduct  prejudicial  to  good 
order  and  military  discipline,  and  was  liable  to  such  further  punishment 
as  a  court-martial  might  inflict.  In  suffering  him  to  escape,  the  prisoner 
became  amenable  to  article  69,  and,  failing  to  use  his  utmost  endeavor 
to  prevent  it,  was  himself  subject  to  such  punishment  as  a  court-martial 
might  direct.     Did  he  exceed  his  authority  in  using  his  musket  ? 

I  have  made  the  above  citations  from  the  military  code  to  show  that 
the  common-law  distinction  between  felonies  and  misdemeanors  is  of  no 
possible  service  in  gauging  the  duty  of  a  military  guard  with  respect  to 
a  soldier  in  the  act  of  escaping.  His  position  is  more  nearly  analogous 
to  that  of  an  armed  sentinel  stationed  upon  the  walls  of  a  penitentiary 


588  UNITED   STATES   V.    CLARK.  [CHAP.  V. 

to  prevent  the  escape  of  con\iets.  The  penitentiary  —  and  for  thia 
purpose  we  ma}'  use  tiie  house  of  correction  in  Detroit  as  an  example  — 
may  contain  convicted  murderers,  felons  of  every  grade,  as  well  as  others 
charged  with  vagrancy  or  simple  breaches  of  the  peace,  and  criminals 
of  all  descriptions  between  the  two.  If  the  guard  sees  one  of  those 
prisoners  scaling  the  wall,  and  there  be  no  other  means  of  arresting 
him,  ma}'  he  not  fire  upon  him  without  stopping  to  inquire  whether  he  is 
a  felon  or  a  misdemeanant  ?  If  he  prove  to  be  a  felon,  he  will  be  fully 
justified ;  if  he  prove  to  be  a  misdemeanant,  is  he  therefore  guilty  of 
murder?  There  are  undoubtedly  cases  where  a  person  who  has  no  mal- 
ice in  fact  may  be  charged  with  malice  in  law,  and  held  guilty  of  murder 
through  a  misapprehension  of  the  law.  Thus,  if  a  sheriff  charged  with 
the  execution  of  a  malefactor  b}'  hanging  should  carr}'  out  the  sentence 
by  shooting  or  beheading ;  or,  commanded  to  hang  upon  a  certain  day, 
should  hang  upon  another  day  ;  or  if  an  unauthorized  person  should 
execute  the  sentence,  —  it  would  probably  be  murder  at  common  law. 
But  these  cases  are  an  exception  to  the  general  rule,  that  actual  malice 
must  exist  to  justif}'  a  conviction  for  murder.  While  human  life  is 
sacred,  and  the  man  who  takes  it  is  held  strictly  accountable  for  his 
act,  a  reputable  citizen,  who  certainl}'  does  not  lose  his  character  as 
such  by  enlisting  in  the  arm}',  ought  not  to  be  branded  as  a  murderer 
upon  a  mere  technicality,  unless  such  technicality  be  so  clear  as  to 
admit  of  no  reasonable  doubt.  Thus,  if  a  sentinel  stationed  at  the  gate 
of  a  fort  should  wantonly  shoot  down  a  civilian  endeavoring  to  enter  in 
the  daytime,  or  an  officer  should  recklessly  slay  a  soldier  for  some  mis- 
conduct or  breach  of  discipline,  no  supposed  obligation  upon  his  part 
to  do  this  would  excuse  so  gross  an  outrage. 

In  this  connection  it  is  urged  by  the  defence  that  the  finding  of  the 
court  of  inquiry  acquitting  the  prisoner  of  all  blame  is  a  complete  bar 
to  this  prosecution.  I  do  not  so  regard  it.  If  the  civil  courts  have 
jurisdiction  of  murder,  notwithstanding  the  concurrent  jurisdiction  by 
court-martial  of  military  offences,  it  follows  logically  that  the  proceed- 
ings in  one  cannot  be  pleaded  as  a  bar  to  proceedings  in  the  other ; 
and  if  the  finding  of  such  court  should  conflict  with  the  well-recognized 
principles  of  the  civil  law,  I  should  be  compelled  to  disregaixl  it.  State 
V.  Rankin,  4  Cold.  145.  At  the  same  time  I  think  that  weight  should 
be  given,  and  in  a  case  of  this  kind  great  weight,  to  the  finding,  as  an 
expression  of  the  opinion  of  the  military  court  of  the  magnitude  of 
Stone's  offence,  and  of  the  necessity  of  using  a  musket  to  prevent  his 
escape.  I  am  the  more  impressed  with  this  view  from  the  difficulty  of 
apj)lying  common  law  principles  to  a  case  of  this  description.  There  is 
a  singular  and  almost  total  absence  of  authority  upon  the  subject  of 
the  power  of  a  military  guard  in  time  of  peace.  But  considering  the 
nature  of  military  government,  and  the  necessity  of  maintaining  good 
order  and  discipline  in  a  camp,  I  should  be  loth  to  say  that  life  might 
not  be  taken  in  suppressing  conduct  prejudicial  to  such  discipline. 

In  charging  the  jury  in  U.  S.  v.  Carr,  1  Woods,  484,  Mr.   Justice 


SECT.  I.]  UNITED   STATES    V.   CLARK.  589 

Woods  instructed  them  to  "  inquire  whether,  at  the  moment  he  fired  his 
piece  at  the  deceased,  with  his  surroundings  at  that  time,  he  had  rea- 
sonable ground  to  believe,  and  did  believe,  that  the  killing  or  serious 
wounding  of  the  deceased  was  necessary  to  the  suppression  of  a  mutiny 
then  and  there  existing,  or  of  a  disorder  which  threatened  speedily  to 
ripen  into  a  mutiny.  If  he  had  reasonable  ground  so  to  believe,  and 
did  so  believe,  then  the  killing  was  not  unlawful.  .  .  .  But  it  must 
be  understood  that  the  law  will  not  require  an  officer  charged  with  the 
order  and  discipline  of  a  camp  or  fort  to  weigh  with  scrupulous  nicety 
the  amount  of  force  necessary  to  suppress  disorder.  The  exercise  of  a 
reasonable  discretion  is  all  that  is  required." 

So,  in  the  case  of  McCall  v.  McDowell,  1  Abb.  (U.  S.)  212,  218,  it  is 
said  that  "  except  in  a  plain  case  of  excess  of  authority,  where  at  first 
blush  it  is  apparent  and  palpable  to  the  commonest  understanding  that 
the  order  is  illegal,  I  cannot  but  think  that  the  law  should  excuse  the 
military  subordinate  when  acting  in  obedience  to  the  order  of  his  com- 
mander. Otherwise  he  is  placed  in  the  dangerous  dilemma  of  being 
liable  in  damages  to  third  persons  for  obedience  to  an  order,  or  to  the 
loss  of  his  commission  and  disgrace  for  disobedience  thereto.  .  .  .  The 
first  duty  of  a  soldier  is  obedience,  and  without  this  there  can  be  neither 
discipline  nor  efficiency  in  the  arm}'.  If  every  subordinate  officer  and 
soldier  were  at  liberty  to  question  the  legality  of  the  orders  of  the  com- 
mander, and  obey  them  or  not  as  he  may  consider  them  valid  or  invalid, 
the  camp  would  be  turned  into  a  debating  school,  where  the  precious 
moment  for  action  would  be  wasted  in  wordy  conflicts  between  the 
advocates  of  conflicting  opinions."  It  is  true  this  was  a  civil  case  for 
false  imprisonment,  and  these  observations  were  made  with  reference  to 
a  question  of  malice,  which  was  material  as  bearing  upon  the  plaintifTs 
right  to  punitory  damages,  as  it  is  also  a  necessary  ingredient  in  the 
definition  of  murder. 

The  question  of  the  civil  responsibility  of  a  naval  officer  (and  his 
criminal  responsibility  seems  to  be  the  same)  was  considered  by  the 
Supreme  Court  in  Wilkes  v.  Dinsman,  7  How.  89,  which  was  an  action 
of  trespass  against  Commodore  Wilkes  for  causing  the  plaintiff  to  be 
whipped  and  imprisoned  for  disobedience  of  orders,  near  the  Sandwich 
Islands.  In  discussing  the  responsibility  of  the  commanding  officer  of 
a  vessel  of  war,  Mr.  Justice  Woodbury  observed  :  "In  respect  to  those 
compulsory  duties,  whether  in  re-enlisting  or  detaining  on  board,  or  in 
punishing  or  imprisoning  on  shore,  while  arduously  endeavoring  to  per- 
form them  in  such  a  manner  as  might  advance  the  science  and  com- 
merce and  glory  of  his  country,  rather  than  his  own  personal  designs, 
a  public  officer,  invested  with  certain  discretionar}'  powers,  never  has 
been,  and  never  should  be,  made  answerable  for  any  injur}',  when 
acting  within  the  scope  of  his  authority,  and  not  influenced  by  malice, 
corruption,  or  cruelty.  .  .  .  The  officer,  being  intrusted  with  a  dis-, 
cretion  for  public  purposes,  is  not  to  be  punished  for  the  exercise  of  it, 
unless  it  is  first  proved  against  him,  either  that  he  exercised  the  power 


590 


UNITED    STATES    V.    CLARK. 


[chap.  v. 


confided  to  bim  in  cases  without  his  jurisdiction,  or  in  a  manner  not 
confided  to  him,  as,  with  malice,  cruelty,  or  wilful  oppression,  or,  in 
the  words  of  Lord  Mansfield,  that  he  exercised  it  as  if  '  the  heart  is 
wrong.'  In  short,  it  is  not  enough  to  show  that  he  committed  an  error 
in  judgment,  but  it  must  have  been  a  malicious  and  wilful  error." 

The  same  principle  was  applied  in  the  criminal  case  of  Riggs  v.  State, 
3  Cold.  85.  Kiggs  was  a  private  soldier  who  had  been  convicted  of 
murder  in  killing  a  man  while  acting  under  the  orders  of  his  superior 
officer.  The  court  held  that  an  order  illegal  in  itself,  and  not  justifiable 
by  the  rules  and  usages  of  war,  so  that  a  man  of  ordinar}'  sense  and  un- 
derstanding would  know,  when  he  heard  it  read  or  given,  that  the  order 
was  illegal,  would  afford  the  private  no  protection  for  a  crime  under 
such  order ;  but  that  an  order  given  by  an  officer  to  his  private  which 
does  not  expressly  and  clearly  show  on  its  face,  or  the  body  thereof, 
its  own  illegality,  the  soldier  would  be  bound  to  obey,  and  such  order 
would  be  a  protection  to  him. 
/"  I  have  no  doubt  the  same  principle  would  apply  to  the  acts  of  a 

subordinate  officer,  performed  in  compliance  with  his  supposed  duty  as 
a  soldier  ;  and  unless  the  act  were  manifestly  beyond  the  scope  of  his 
authorit}-,  or,  in  the  words  used  in  the  above  case,  were  such  that  a  man 
of  ordinary  sense  and  understanding  would  know  that  it  was  illegal,  that 
it  would  be  a  protection  to  him,  if  he  acted  in  good  faith  and  without 
I         mahce.     As  there  is  no  reason  in  this  case  to  suppose  that  Clark  was 
1        not  doing  what  he  conceived  to  be  his  duty,  and  the  act  was  not  so 
I        clearly  illegal  that  a  reasonable  man  might  not  suppose  it  to  be  legal,  — 
i        indeed,  I  incline  to  the  opinion  that  it  was  legal,  —  and  as  there  was  an 
!        entire  absence  of  malice,  I  think  he  ought  to  be  discharged. 

But,  even  if  this  case  were  decided  upon  common-law  principles,  the 
result  would  not  be  different.  By  the  statutes  of  the  State  in  which  the 
homicide  was  committed,  a  felony  is  defined  to  be  any  crime  punishable 
bv  imprisonment  in  the  State's  prison.  Stone  had  been  convicted  of  a 
military  offence,  and  sentenced  to  hard  labor  in  the  military  prison  for 
two  years,  and,  so  far  as  the  analogies  of  the  common  law  are  applicable 
at  all,  he  must  be  considered,  in  a  case  of  this  kind,  as  having  been 
convicted  of  a  felony. 

It  may  be  said  that  it  is  a  question  for  a  jury,  in  each  case,  whether 
the  prisoner  was  justified  by  the  circumstances  in  making  use  of  his 
musket,  and  if  this  were  a  jury  trial  I  should  submit  that  question  to 
them  ;  but  as  I  am  bound  to  find  as  a  matter  of  fact  that  there  is  reasona- 
ble cause  to  believe  the  defendant  guilty,  not  merely  of  a  homicide,  but 
of  a.  felonious  homicide,  and  as  I  would,  acting  in  another  capacity,  set 
aside  a  conviction,  if  a  verdict  of  guilty  were  rendered,  I  shall  assume 
the  responsibility  of  directing  his  discharge.^ 

>  See  also  Com.  v.  Shortall,  I'OO  I'a.  165.  —  Ed. 


SECT.  II.]  HANDCOCK   V.    BAKER.  591 


SECTION  II. 

Authority  to  Act. 

HANDCOCK  V.   BAKER. 
Common  Pleas,  1800. 

[Re-ported  2  B.  &  P.  260.] 

Trespass  for  breaking  the  plaintiff's  dwelling  house  and  assaulting 
him  therein,  and  dragging  him  out  of  bed,  and  forcing  him  without 
clothes  out  of  his  house  along  the  public  street,  and  beating  and  im- 
prisoning him  without  cause. 

Two  of  the  defendants  suffered  judgment  by  default,  and  the  other 
two  pleaded,  1st,  not  guilty:  2dly,  that  the  plaintiff  in  the  said  dwelling 
house  broke  the  peace  and  assaulted  his  wife,  and  purposed  to  have 
feloniously  killed  and  slain  her,  and  was  on  the  point  of  so  doing; 
and  that  her  life  being  in  great  danger  she  cried  murder  and  called  for 
assistance;  whereupon  the  defendants,  for  the  preservation  of  the  peace, 
and  to  prevent  the  plaintiff  from  so  killing  and  slaying  his  wife,  and 
committing  the  said  felony,  endeavored  to  enter  by  the  door,  and 
knocked  thereat;  and  because  the  same  was  fastened,  and  there  was 
reasonable  cause  to  presume  that  the  wife's  life  could  not  have  been 
otherwise  preserved  than  by  immediately  breaking  open  the  door  and 
entering  the  said  dwelling  house,  and  they  could  not  otherwise  obtain 
possession,  they  did  for  that  purpose  break  and  enter  the  said  dwelling 
house,  and  somewhat  break,  etc.,  doing  as  little  damage  as  possible, 
and  gently  laid  hands  on  the  plaintiff,  and  prevented  him  from  further 
assaulting  and  feloniously  killing  and  slaying  his  said  wife;  and  for  the 
same  purpose  and  also  for  that  of  taking  and  delivering  the  plaintiff 
to  a  constable,  to  be  by  him  taken  before  a  justice,  and  dealt  with 
according  to  law,  kept  and  detained  him  a  short  and  reasonable  time 
in  that  behalf,  and  because  he  had  not  then  proper  and  reasonable 
clothes  on  him,  took  their  hands  off  from  him,  and  permitted  him  to 
enter  a  bed-chamber,  and  to  remain  there  a  reasonable  time,  that  he 
might  put  on  such  clothes,  which  he  might  have  done;  and  because  he 
did  not  nor  would  so  do,  but  wholly  refused  and  went  into  bed  there, 
and  remained  there  at  the  end  of  such  reasonable  time,  and  would  not 


692  HANDCOCK   V.   BAKER.  [CHAP.  V. 

quit  the  same,  although  thereto  requested,  the  defendants  for  the 
same  purposes  as  they  so  kept  and  detained  the  plaintiff  as  above- 
mentioned,  there  being  then  no  reasonable  ground  for  presuming  that 
he  had  changed  his  purpose  of  further  assaulting  and  feloniously  slaying 
his  said  wife,  entered  the  bed-chamber  in  order  for  those  purposes  to 
take  him  therefrom,  whereupon  the  plaintiff  assaulted  and  would  have 
beat  the  said  defendants  if  they  had  not  defended  themselves,  which 
they  did,  and  if  any  damage  happened  to  the  plaintiff  it  was  occasioned 
by  his  own  assault,  and  the  defendants  for  the  purposes  in  that  behalf 
aforesaid,  gently  laid  hands  upon  the  plaintiff  and  took  him  from  the 
bed  and  out  of  the  dwelling  house  along  the  public  streets  for  a  rea- 
sonable time,  and  kept  and  detained  him  for  a  short  and  reasonable 
time  for  those  purposes,  till  they  could  find  a  constable,  and  as  soon 
as  they  could  find  a  constable  delivered  him  to  the  constable  for  the 
purpose  in  that  behalf  aforesaid. 

The  plaintiff  replied  de  injuria  sua  propria,  and  by  way  of  new 
assignment  pleaded,  that  he  sued  out  his  wTit  and  declared  as  well 
for  the  trespasses  justified,  as  also  for  that  the  defendants  at  the  times 
when,  etc.,  beat  and  ill-treated  the  plaintiff  with  much  greater  violence 
and  imprisoned  him  for  a  longer  time  than  was  necessary  and  proper 
for  any  of  the  purposes  in  the  plea  mentioned. 

Issue  ha\'ing  been  joined  on  the  replication  and  new  assignment,  the 
cause  was  tried  before  Grose,  J.,  at  the  last  spring  assizes  for  Norfolk, 
when  the  jury  found  for  the  plaintiff  on  the  general  issue,  and  for  the 
defendants  on  the  special  justification. 

In  Easter  term  last  a  rule  Nisi  was  obtained  calling  on  the  defendants 
to  show  cause  why  the  judgment  for  the  defendants  on  the  special 
justification  should  not  be  arrested,  and  a  verdict  entered  for  the 
plaintiff  on  the  general  issue,  with  \s.  damages. 

Lord  Eldon,  C.  J.  If  the  reasoning  be  good  that  a  wife  ought  to 
apply  for  assistance  to  those  courts  where  the  law  has  pro\aded  assist- 
ance for  her,  it  will  equally  apply  to  the  first  entry  of  the  house  by  the 
defendants,  as  to  the  subsequent  assault  and  imprisonment  which 
is  stated  to  have  taken  place  in  the  bedroom.  I  think,  however,  that 
a  wife  is  only  bound  to  apply  to  those  remedies,  where  it  is  probable 
that  the  injury  to  be  apprehended  will  be  prevented  by  such  applica- 
tion. In  this  case  the  plaintiff  being  about  to  commit  a  felony  by  killing 
and  slaying  his  wife,  the  defendants  interfered  by  breaking  and  enter- 
ing the  house  in  order  to  prevent  the  execution  of  that  intent:  and 
"for  the  same  purposes,"  that  is,  with  a  \iew  to  prevent  the  plaintiff 
from  killing  and  slaying  his  wife,  they  afterwards  committed  the  injury 
complained  of  in  the  bedroom,  into  which  they  had  permitted  him  to 
enter  in  order  to  put  on  necessary  clothes.  It  is  stated  that  there 
was  no  reasonable  ground  for  presuming  that  the  plaintiff  had  changed 
his  purpose;  and  it  is  argued  that  it  ought  to  have  been  averred  that  his 
purpose  actually  continued:  but  if  the  preceding  allegation  be  true. 


SECT.  II.]  HAXDCOCK   V.   BAKER.  593 

that  the  defendants  entered  the  bedroom  for  the  same  purposes  for 
which  they  had  previously  entered  the  house,  the  latter  allegation  was 
unnecessary;  since  the  averment  that  it  was  for  the  same  purposes 
sufficiently  brought  the  question  before  the  jury,  Whether  or  not  the 
defendants  went  into  the  bed-chamber  and  detained  the  plaintiff 
for  the  purpose  of  preventing  him  from  killing  and  slaying  his  wife? 
It  is  not  difficult  to  conceive  that  under  some  circumstances  it  might 
be  more  especially  the  defendant's  duty  to  interfere  in  that  manner. 
Suppose  A  endeavor  to  lay  hold  of  B  who  is  in  pursuit  of  C  with  an 
intent  to  kill  him,  and  B  thereupon  ceases  to  pursue  with  the  view 
of  effecting  his  purpose  with  more  cunning,  the  act  of  ceasing  to  run, 
so  far  from  being  evidence  of  an  intention  to  desist  from  his  purpose, 
might  afford  strong  exadence  of  an  intention  to  prosecute  it  with  more 
effect;  in  which  case  the  detention  of  B  would  be  justified.  In  this 
case  the  jury  were  competent  to  consider  whether  under  all  the  cir- 
cumstances of  the  case,  including  the  presence  or  absence  of  the  wife, 
the  plaintiff  got  into  bed  with  a  view  of  more  effectually  executing  his 
intent  to  kill  his  wife.  In  fact  the  jury  have  found  that  the  defendants 
kept  and  detained  the  plaintiff  after  he  had  gone  into  the  bedroom 
for  the  same  purposes  for  which  they  kept  and  detained  him  before. 
With  respect  to  the  averment  which  has  been  supposed  to  be  necessary, 
it  is  sufficient  to  answer,  that  after  verdict  it  must  be  presumed  that 
everything  is  proved  which  is  necessary  to  support  the  verdict;  and 
the  jury  have  found  that  it  was  necessary  for  the  preservation  of  the 
woman's  life  that  the  defendants  should  do  what  they  did. 

Heath,  J.  I  am  of  the  same  opinion.  It  is  a  matter  of  the  last  con- 
sequence that  it  should  be  known  upon  what  occasions  bystanders 
may  interfere  to  prevent  felony.^     In  the  riots  which  took  place  in 

1  Indeed  there  seems  to  be  very  hitch  authority  for  the  interference  of  private  indi- 
viduals in  case  of  riot,  though  no  felony  be  committed.  The  question  underwent  a 
very  solemn  discussion  in  1.597  (39  Eliz.  at  which  time  the  country  was  in  a  very 
unquiet  state,)  before  all  the  judges  in  a  case  which  is  called  "Case  of  armes," 
Poph:  121,  and  is  as  follows:  "Upon  an  assembly  of  all  the  justices  and  barons  at 
Sergeant's  Inn  this  term,  on  Monday  the  loth  day  of  April,  upon  this  question 
moved  by  Anderson,  C.  J.,  of  the  Common  Bench;  Whether  men  may  arm  them- 
selves to  suppress  riots,  rebellions,  or  to  resist  enemies  and  to  endeavour  themselves 
to  suppress  or  resist  such  disturbers  of  the  peace  or  quiet  of  the  realm?  And  upon 
good  deliberation  it  was  resolved  by  them  all,  that  every  justice  of  peace,  sheriff 
and  other  minister  or  other  subject  of  the  king  where  such  accident  happen  may  do 
it;  and  to  fortify  this  their  resolution,  they  perused  the  statute  of  2  Ed.  3.  3.  which 
enacts,  that  none  be  so  hardy  as  to  come  with  force  or  bring  force  to  any  place  in 
affray  of  the  peace,  nor  to  go  or  ride  armed  night  nor  day,  unless  he  be  a  servant  to 
the  king  in  his  presence,  and  the  ministers  of  the  king  in  the  execution  of  his  pre- 
cepts, or  of  their  office  and  those  who  are  in  their  company  assisting  them,  or  upon 
cry  made  for  weapons  to  keep  the  peace,  and  this  in  such  places  where  accidents 
happen,  upon  the  penalty  in  the  same  statute  contained;  whereby  it  appeareth  that 
upon  cry  made  for  weapons  to  keep  the  peace,  everj'  man  where  such  accidents  hap- 
pen for  breaking  the  peace,  may  by  the  law  arm  himself  against  such  e\al-doers  to 
keep  the  peace.    But  they  take  it  to  be  the  more  discreet  way  for  every  one  in  such 


594  HANDCOCK   V.   BAKEE.  [CHAP.  V, 

the  year  1780,  this  matter  was  much  misunderstood,  and  a  general 
persuasion  prevailed  that  no  indifferent  person  could  interpose  without 
the  authority  of  a  magistrate;  in  consequence  of  which  much  mischief 
was  done,  which  might  otherwise  have  been  prevented.  In  this  case 
the  defendants  broke  and  entered  the  plaintiff's  house  in  order  to 
prevent  the  commission  of  murder,  and  that  seems  to  have  been  ad- 
mitted to  be  a  good  justification.  The  only  dispute  therefore  turns 
on  the  propriety  of  their  conduct  towards  the  plaintiff  after  they  had 
suffered  him  to  go  into  the  bedroom.  Now  I  think  that  enough  is 
stated  in  the  justification  to  support  the  verdict,  since  the  jury  have 
thought  that  the  conduct  of  the  defendants  was  right.  After  verdict 
we  may  suppose  anything.  We  may  suppose  that  the  plaintiff's 
passion  continued,  and  that  he  again  declared  that  he  would  kill  his 
wife. 

RooKE,  J.  I  am  of  the  same  opinion.  It  is  highly  important  that 
bystanders  should  know  when  they  are  authorized  to  interfere.  In 
this  case  the  life  of  the  wife  was  in  danger  from  the  act  of  the  husband. 
The  defendants  therefore  were  justified  in  breaking  open  the  house, 
and  doing  what  was  necessary  for  the  preservation  of  her  life.  The  jury 
find  that  they  have  done  this. 

Chambre,  J.  There  is  a  great  difference  between  the  right  of  a  pri- 
vate person  in  cases  of  intended  felony  and  of  breach  of  the  peace. 
It  is  lawful  for  a  private  person  to  do  anything  to  prevent  the  perpetra- 
tion of  a  felony.  In  this  case  it  is  stated  that  the  plaintiff  purposed 
feloniously  to  kill  and  slay  his  wife,  to  prevent  which  the  defendants 
interfered  in  the  manner  stated  in  the  plea.  The  justification  has 
been  found  by  the  verdict;  and  the  defendants  therefore  are  entitled 
to  the  judgment  of  the  court. 

Rule  discharged. 

a  case  to  attend  and  be  assistant  to  the  justices,  sheriffs,  or  other  ministers  of  the 
king  in  the  doing  of  it."  This  case  is  spoken  of  with  approbation  by  the  judges  in 
the  great  case  of  Messenger  and  others,  Kel.  76,  and  its  principle  is  adopted  by 
Hawkins  in  his  pleas  of  the  crown,  lib.  1,  c.  65,  s.  11,  where  he  says,  "it  hath  been 
holden  that  private  persons  may  arm  themselves  in  order  to  suppress  a  riot,  from 
whence  it  seems  clearly  to  follow  that  they  may  also  make  use  of  arms  in  the  suppress- 
ing of  it  if  there  be  a  necessity  for  so  doing."  He  adds  indeed,  that  it  seems  hazard- 
ous for  private  persons  to  go  so  far  in  common  cases,  and  that  such  violent  methods 
seem  only  proper  against  such  riots  as  savour  of  rebellion. 


SECT.   II.]  POND   V.    PEOPLE.  595 


REX   V.    SMITH. 

Old  Bailey.     1804. 

[Reported  1  Russ.  Cr.  ^-  M.  458.] 

The  neighborhood  of  Hammersmith  had  been  alarmed  by  what  was 
supposed  to  be  a  ghost ;  the  prisoner  went  out  with  a  loaded  gun  to 
take  the  ghost ;  and,  upon  meeting  with  a  person  dressed  in  white, 
immediately  shot  him. 

M'DoNALD,  C.  B.,  RoOKE  and  Lawrence,  JJ.,  were  clear  that  this 
was  murder,  as  the  person  who  appeared  as  a  ghost  was  only  guilty  of  a 
misdemeanor  ;  and  no  one  might  kill  him,  though  he  could  not  otherwise 
be  taken. 


POND  V.    PEOPLE. 
Supreme  Court  of  Michigan,  1860. 

[Reported  8  Mich.  150.] 

The  plaintiff  in  error  was  tried  on  an  information  for  the  murder  of 
one  Isaac  Blanchard,  and  convicted  of  manslaughter.^ 

Campbell,  J.  The  essential  difference  between  excusable  and  justi- 
fiable homicide  rests  not  merely  in  the  fact  that  at  common  law  the 
one  was  felonious,  although  pardoned  of  course,  while  the  other  was 
innocent.  Those  only  were  justifiable  homicides  where  the  slayer  was 
regarded  as  promoting  justice,  and  performing  a  public  duty;  and  the 
question  of  personal  danger  did  not  necessarily  arise,  although  it  does 
generally. 

It  is  held  to  be  the  duty  of  every  one  who  sees  a  felony  attempted 
by  violence,  to  prevent  it  if  possible;  and  in  the  performance  of  this 
duty,  which  is  an  active  one,  there  is  a  legal  right  to  use  all  necessary 
means  to  make  the  resistance  effectual.  Where  a  felonious  act  is  not 
of  a  \aolent  or  forcible  character,  as  in  picking  pockets,  and  crimes 
partaking  of  fraud  rather  than  force,  there  is  no  necessity,  and  therefore 
no  justification,  for  homicide,  unless  possibly  in  some  exceptional 
cases.    The  rule  extends  only  to  cases  of  felony ;  and  in  those  it  is  lawful 

■  The  evidence,  except  so  far  as  it  is  stated  in  the  opinion,  and  part  of  the  opinion 
in  which  the  question  of  self-defense  is  discussed,  are  omitted.  —  Ed. 


596  POND   V.    PEOPLE.  [chap.  V. 

to  resist  force  by  force.  If  any  forcible  attempt  is  made,  with  a  felonious 
intent  against  person  or  property,  the  person  resisting  is  not  obliged 
to  retreat,  but  may  pursue  his  adversary,  if  necessary,  till  he  finds 
himself  out  of  danger.  Life  may  not  properly  be  taken  under  this  rule 
where  the  evil  may  be  prevented  by  other  means  within  the  power  of 
the  person  who  interferes  against  the  felon.  Reasonable  apprehension, 
however,  is  sufficient  here,  precisely  as  in  all  other  cases. 

It  has  also  been  laid  down  by  the  authorities,  that  private  persons 
may  forcibly  interfere  to  suppress  a  riot  or  resist  rioters,  although  a 
riot  is  not  necessarily  a  felony  in  itself.  This  is  owing  to  the  nature  of 
the  offense,  which  requires  the  combination  of  three  or  more  persons, 
assembling  together  and  actually  accomplishing  some  object  calculated 
to  terrify  others.  Private  persons  who  cannot  otherwise  suppress 
them,  or  defend  themselves  from  them,  may  justify  homicide  in  killing 
them,  as  it  is  their  right  and  duty  to  aid  in  preserving  the  peace.  And 
perhaps  no  case  can  arise  where  a  felonious  attempt  by  a  single  indi- 
\'idual  will  be  as  likely  to  inspire  terror  as  the  turbulent  acts  of  rioters. 
And  a  very  limited  knowledge  of  human  nature  is  sufficient  to  inform 
us,  that  when  men  combine  to  do  an  injury  to  the  person  or  property 
of  others,  of  such  a  nature  as  to  involve  excitement  and  provoke  re- 
sistance, they  are  not  likely  to  stop  at  half  way  measures,  or  to  scan 
closely  the  dividing  line  between  felonies  and  misdemeanors.  But  when 
the  act  they  meditate  is  in  itself  felonious,  and  of  a  violent  character, 
it  is  manifest  that  strong  measures  will  generally  be  required  for  their 
effectual  suppression;  and  a  man  who  defends  himself,  his  family,  or  his 
property,  under  such  circumstances,  is  justified  in  making  as  complete 
a  defense  as  is  necessary. 

When  we  look  at  the  facts  of  this  case,  we  find  very  strong  circum- 
stances to  bring  the  act  of  Pond  within  each  of  the  defenses  we  have 
referred  to.  Without  stopping  to  recapitulate  the  testimony  in  full  or 
in  detail,  we  have  these  leading  features  presented :  Without  any  cause 
or  provocation  given  by  Pond,  we  find  Plant,  Robilliard,  and  Blanchard, 
combining  with  an  expressed  intention  to  do  him  personal  violence. 
On  Thursday  evening  tliis  gang,  with  from  fifteen  to  twenty  associates, 
haxang  been  hunting  for  Pond,  found  him  at  a  neighbor's,  and  having 
got  him  out  of  doors,  surrounded  him,  while  Plant  struck  him  with  his 
fist,  and  kicked  him  in  the  breast,  with  insulting  language,  evidently 
designed  to  draw  him  into  a  fight.  He  escaped  from  them,  and  ran 
away  into  the  woods,  and  succeeded  in  avoiding  them  that  night. 
The  same  night  they  tore  down  the  door  of  the  net-house,  where  his 
servants  were  asleep,  in  search  of  him ;  and  not  finding  him  there,  went 
to  the  house,  the  whole  rabble  being  with  them,  and  wanted  Pond,  and 
expressed  themselves  determined  to  have  him;  but  refused  to  tell  his 
wife  what  they  wanted  of  him.  Not  finding  him  there,  they  started  off 
elsewhere  in  search  of  him.  This  was  between  nine  and  ten  o'clock  at 
night.    About  noon  of  Friday,  Plant  and  Blanchard  met  Pond,  when 


SECT.  11.]  POND   V.   PEOPLE.  597 

Plant  threatened  again  to  whip  him ;  and  then  went  up  to  him,  told  him 
not  to  say  anything,  and  that  if  he  did  he  would  give  him  slaps  or  kicks. 
Plant  then  took  a  stone  in  his  hand,  and  threatened  if  Pond  spoke,  to 
throw  it  at  him.  Pond  said  nothing,  but  went  home  quietly,  and  Plant 
went  off  and  was  heard  making  further  threats  soon  after.  Friday 
night  neither  Pond  nor  his  family  went  to  bed,  being  in  fear  of  \iolence. 
Between  one  and  two  o'clock  that  night,  Plant,  Robilliard,  and  Blan- 
chard  went  to  the  net-house,  and  partially  tore  it  down,  while  Whitney 
and  Cull  were  in  it.  They  then  went  to  the  house  where  Pond,  his  wife, 
and  children  were,  shook  the  door,  and  said  they  wanted  Pond.  Pond 
concealed  himself  under  the  bed,  and  his  wafe  demanded  what  they 
wanted  of  him,  saying  he  was  not  there;  when  Plant  shook  the  door 
again,  and  ordered  Mrs.  Pond  to  open  it,  saying  they  wanted  to  search 
the  house.  She  refusing,  they  resorted  to  artifice,  asking  for  various 
articles  of  food,  and  objecting  to  recei\'ing  them  except  through  the 
door.  Plant  then  repeatedly  commanded  her  to  open  the  door,  sa\'ing 
if  she  did  not,  she  would  regret  it.  On  opening  the  door  from  six  to 
twelve  inches,  by  sliding  the  cord,  to  hand  them  some  sugar,  which  they 
demanded,  they  did  not  take  the  sugar,  but  Plant  seized  Mrs.  Pond's 
arm,  and  squeezed  it  until  she  fainted.  Not  succeeding  in  getting  into 
the  house,  they  then  left  for  Ward's,  and  Pond  went  to  the  house  of  his 
brother-in-law,  and  borrowed  a  double-barreled  shot  gun  loaded  with 
pigeon  shot,  and  returned  home.  While  at  Ward's  Blanchard  told  the 
latter  that  they  had  torn  down  part  of  Pond's  net-house,  and  had  left 
the  rest  so  that  when  they  went  back  they  would  have  the  rest  of  the  fun. 
Blanchard  also  said,  "I  want  to  see  Gust.  Pond:  he  abused  an  Irish- 
man, and  I  want  to  abuse  him  just  as  bad  as  he  abused  the  Irishman. 
Pond  has  to  be  abused  any  way."  He  also  said  to  Ward,  "This  is 
good  bread,  I  don't  know  but  it  may  be  the  last  piece  of  bread  I'll  eat." 
Plant  also  made  threats.  A  short  time  after  returning,  they  were  heard 
to  say  they  were  going  back  again;  were  going  to  find  him  and  to  whip 
him,  or  have  the  soul  out  of  him.  It  is  to  be  remarked  that  we 
have  their  language  as  rendered  by  an  interpreter,  who  was  e\n- 
dently  illiterate,  or  at  least  incompetent  to  translate  into  very  good 
English;  and  it  is  impossible  for  us  to  determine  the  exact  force  of 
what  was  said. 

The  party  then  went  back  to  Pond's,  and  asked  admittance  to  search 
for  him.  His  wife  refused  to  let  them  in.  They  immediately  went  to 
the  net-house,  where  Cull  was  asleep.  Plant  seized  Cull,  and  pulled 
him  out  of  bed  on  the  floor,  and  began  choking  him.  Cull  demanded 
who  it  was,  but  received  no  answer.  Blanchard  and  Robilliard  had 
commenced  tearing  doAvn  the  boards.  Pond  went  to  the  door  and 
hallooed,  "Who  is  tearing  down  my  net -house?"  to  which  there  was 
no  answer.  The  voices  of  a  woman  and  child  were  heard  crying,  and 
the  woman's  voice  was  heard  twice  to  cry  out  "  for  God's  sake! "  Cull's 
voice  was  also  heard  from  the  net-house,  not  speaking,  but  hallooing 


598  POND    V.    PEOPLE.  [chap.  Y. 

as  if  he  was  in  pain.  Pond  cried  out  loudly,  "leave  or  I'll  shoot." 
The  noise  continuing,  he  gave  the  same  warning  again,  and  in  a  few 
seconds  shot  off  one  barrel  of  the  gun.  Blanchard  was  found  dead  the 
next  morning.  Pond  took  immediate  steps  to  surrender  himself  to 
justice. 

A  question  was  raised  whether  the  net-house  was  a  dwelling  or  a 
part  of  the  dwelling  of  Pond.  We  think  it  was.  It  was  near  the  other 
building,  and  was  used  not  only  for  preserving  the  nets  which  were 
used  in  the  ordinary  occupation  of  Pond,  as  a  fisherman,  but  also  as  a 
permanent  dormitory  for  his  servants.  It  was  held  in  The  People  v. 
Taylor,  2  Mich.  250,  that  a  fence  was  not  necessary  to  include  build- 
ings within  the  curtilage,  if  within  a  space  no  larger  than  that 
usually  occupied  for  the  purposes  of  the  dwelling  and  customary 
outbuildings.  It  is  a  very  common  thing  in  the  newer  parts  of 
the  country,  where,  from  the  nature  of  the  materials  used,  a  large 
building  is  not  readily  made,  to  have  two  or  more  small  buildings, 
with  one  or  two  rooms  in  each,  instead  of  a  large  building  divided 
into  apartments. 

We  cannot,  upon  a  consideration  of  the  facts  manifest  from  the  bill 
of  exceptions,  regard  the  charges  asked  by  the  defense  as  abstract  or 
inapplicable  to  the  case.  It  was  for  the  jury  to  consider  the  whole 
chain  of  proof;  but  if  they  believed  the  evidence  as  spread  out  upon  the 
case,  we  feel  constrained  to  say  that  there  are  very  few  of  the  precedents 
which  have  shown  stronger  grounds  of  justification  than  those  which 
are  found  here.  Instead  of  reckless  ferocity,  the  facts  display  a  very 
commendable  moderation. 

Apart  from  its  character  as  a  dwelling,  which  was  denied  by  the 
court  below,  the  attack  upon  the  net-house  for  the  purpose  of  destroy- 
ing it  was  a  violent  and  forcible  felony.  And  the  fact  that  it  is  a 
statutory  and  not  common  law  felony,  does  not,  in  our  view,  change  its 
character.  Rape  and  many  other  of  the  most  atrocious  felonious 
assaults,  are  statutory  felonies  only,  and  yet  no  one  ever  doubted  the 
right  to  resist  them  unto  death.  And  a  breaking  into  a  house  with  the 
design  of  stealing  the  most  trifling  article,  being  common  law  burglary, 
was  likewise  allowed  to  be  resisted  in  like  manner,  if  necessary.  We 
think  there  is  no  reason  for  making  any  distinctions  between  common 
law  and  statute  felonies  in  this  respect,  if  they  are  forcible  and  violent. 
So  far  as  the  manifest  danger  to  Pond  himself,  and  to  Cull,  is  concerned, 
the  justification  would  fall  within  the  common  law. 


SECT.  II.J  REGINA    V.   MURPHY.  599 

REGINA   V.  MURPHY. 
Meath  Assizes.    1839. 

'      [Reported  1  Crawford  ^  Dix,  20.] 

The  prisoner  was  indicted  under  the  statute  7  Will.  IV.  &  1  Vict. 
xi.  85,  for  that  a  certain  gun  then  and  there  loaded  with  gunpowder  and 
divers  leaden  shot,  which  said  gun  he  the  said  P.  M.,  in  both  his  hands, 
then  and  there  had  and  held,  at  and  against  one  Christopher  Hand,  then 
and  there  felonioush',  unlawfully,  and  maliciously  did  shoot,  with  intent 
in  so  doing  thereby  then  and  tliere  the  said  C.  H.  to  disfigure,  to  disable, 
and  to  do  some  grievous  bodily  harm. 

It  appeared  that  on  the  day  in  question  the  prisoner,  who  was  a 
game-keeper  and  woodranger  of  Lord  Dunsany,  and  armed  with  a 
fowling-piece,  detected  the  prosecutor  in  the  act  of  carrying  away  from 
his  employer's  lands  a  bundle  of  sticks,  consisting  of  branches  severed 
from  the  growing  timber  by  a  recent  storm  ;  that  the  prosecutor  being 
apparently  about  to  pass  over  a  ditch  and  hedge  upon  the  same  lands, 
the  prisoner  cried  out  to  him,  '■'•Have  you  no  other  wa}'  of  going  but 
breaking  the  hedge?"  that  the  prosecutor  made  no  reply,  but  instantly 
dropped  the  wood  and  leaped  the  ditch ;  that  the  prisoner  thereupon 
said,  '•'If  you  don't  stop  I  '11  fire  ;  "  that  the  prosecutor  still  going  on, 
the  prisoner  discharged  his  piece  and  wounded  the  prosecutor  in  the 
liead,  back,  and  arms.  When  the  prosecutor  felt  himself  wounded  he 
said  to  the  prisoner,  who  had  come  up  with  him,  "I  did  not  think  you 
would  have  done  it ;"  to  which  the  latter  replied,  "I  would  do  that  and 
worse  to  you." 

W.  Gorman^  for  the  prisoner,  submitted  that,  under  the  circum- 
stances, he  (the  prisoner)  was  entitled  to  an  acquittal ;  that  he,  being 
the  woodranger  of  the  owner  of  the  soil,  had  an  equal  right  to  defend 
the  property  thereon ;  and  that,  having  detected  the  prisoner  in  the  act 
of  committing  a  felony,  by  carrying  off  the  dissevered  timber,  he  had 
made  use  of  the  only  means  in  his  power  for  the  purpose  of  arresting 
the  felon. 

Tickell^  Q.  C,  for  the  Crown.    The  prosecutor  was  a  mere  trespasser. 

DoHEKTY,  C.  J.  He  was  something  more  than  a  trespasser  ;  there  is 
no  doubt  that  the  prosecutor,  in  carrying  away  the  branches,  previously 
dissevered  from  the  trees,  was  committing  a  felon^',  and  the  prisoner 
was  clearly  entitled  to  arrest  him  ;  but  in  discharging  his  gun  at  the 
prosecutor,  and  perilling  his  life,  the  prisoner  has  very  much  exceeded 
his  lawful  powers,  and  I  cannot  allow  it  to  go  abroad  that  it  is  lawful 
to  fire  upon  a  person  committing  trespass  and  larceny,  for  that  would 
be  punishing,  perhaps  with  death,  offences  for  which  the  law  has  pro- 
vided milder  penalties.  It  appears,  moreover,  that  the  expressions 
addressed  by  the  prisoner  to  the  prosecutor  had  reference  rather  to  the 
acts  of  trespass  than  the  felony.  Verdict,  Guilty. 


600  BURNS  V.    ERBEN.  [CHAP.  V. 


BURNS  V.  ERBEN. 
Court  of  Appeals,  New  York,  1869. 

[Reported  40  N.  Y.  463.] 

Woodruff,  J.  By  section  8  of  the  act  to  establish  a  Metropolitan 
Police  District,  passed  April  15th,  1857  (chap.  569  of  Laws  of  1857), 
the  members  of  the  pohce  force  of  that  district  are  given  "in  every 
part  of  the  State  of  New  York,  all  the  common  law  and  statutory  powers 
of  constables,  except  for  the  ser\'ice  of  civil  process."  And  in  the 
amendatory  act  passed  April  10, 1860  (chap.  259  of  Laws  of  1860),  it  is 
declared  in  the  28th  section,  that  the  members  of  the  police  force  of 
that  district  "  shall  possess  in  every  part  of  the  State  all  the  common 
law  and  statutory  powers  of  constables,  except  for  the  ser\ace  of  ci\al 
process." 

In  pursuance  of  information  given  by  the  defendant,  Erben,  the 
defendant,  Frost,  accompanied  by  Erben,  arrested  the  plaintiff  without 
warrant,  took  her  to  the  pohce  station,  where  she  was  detained  a  few 
minutes,  and  after  some  conversation  with  the  officer  in  charge,  she 
was  permitted  to  return  to  her  residence.  For  this  she  has  brought  the 
present  action  for  false  imprisonment. 

A  felony  had  been  committed  that  evening,  at  the  house  of  Mr. 
Henry  Erben,  the  defendant's  father.  On  that  point  there  is  no  dispute 
or  conflict.  The  plaintiff  had  Aasited  the  house  that  evening,  and, 
according  to  the  information  upon  which  the  defendant  acted,  was  the 
only  person  not  a  member  of  the  family,  who  had  been  in  the  basement. 
Silver  had  been  stolen  from  the  basement.  It  was  there  when  the 
plaintiff  entered  and  until  after  8  o'clock;  and  it  was  missed  very  shortly 
after  she  left  the  house.  Of  these  facts  the  proof  was  distinct  and  with- 
out contradiction. 

Upon  a  report  of  these  facts,  Frost,  accompanied  by  the  defendant, 
Erben,  made  the  arrest  as  above  stated. 

The  inquiry  is,  therefore,  whether  under  the  statutes  above  cited 
and  the  common  law  rule  in  respect  of  arrests  made  or  aided  by  pri- 
vate persons,  the  plaintiff  was  entitled  to  recover.  There  were  no  facts 
in  dispute  requiring  the  submission  of  any  question  to  the  jury,  unless 
it  be  held  that  there  was  no  justification. 

I  have  no  doubt  upon  the  subject.  The  writers  upon  criminal  law 
and  the  reported  cases,  so  far  as  I  have  examined  them,  hold  uniform 
language. 


SECT.  II.]  BURNS   V.   ERBEN.  601 

Lord  Tenterden,  C.  J.,  in  Beckwith  v.  Philby  (6  Barn.  &  Cress., 
635),  says:  "The  only  question  of  law  in  this  case  is,  whether  a  con- 
stable, having  a  reasonable  cause  to  suspect  that  a  person  has  committed 
a  felony,  may  detain  such  person  until  he  can  be  brought  before  a 
justice  of  the  peace  to  have  his  conduct  investigated.  There  is  this 
distinction  between  a  private  individual  and  a  constable;  in  order  to 
justify  the  former  in  causing  the  imprisonment  of  a  person,  he  must  not 
only  make  out  a  reasonable  ground  of  suspicion,  but  he  must  prove  that 
a  felony  has  actually  been  committed;  whereas  a  constable  having 
reasonable  ground  to  suspect  that  a  felony  has  been  committed,  is 
authorized  to  detain  the  party  suspected  until  inquiry  can  be  made  by 
the  proper  authorities."  (See  Hawk.  P.  C,  book  2,  chap.  12,  13;  1 
Russell  on  Crime,  594,  5;  Steph.  Cr.  L.,  242,  3;  1  Chit.  Cr.  L.,  15,  17; 
Samuel  v.  Payne,  Doug.  358;  Lawrence  v.  Hedger,  3  Taunt.  14; 
Regina  v.  Toohy,  2  Ld.  Raymond,  130;  Hobbs  v.  Brandscomb,  3  Camp. 
420;  Davis  v.  Russell,  5  Bing.  354;  Cowles  x.  Dunbar,  2  Car.  and  P. 
565.) 

In  Ledwith  v.  Catchpole  (Cad.  Cas.,  291,  and  1st  Burns,  Justice, 
p.  130,  1),  Lord  Mansfield  says,  in  an  action  against  the  officer: 
"The  question  is,  whether  a  felony  has  been  committed  or  not.  And 
then  the  fundamental  distinction  is,  that  if  a  felony  has  actually 
been  committed,  a  private  person  may,  as  well  as  a  police  officer, 
arrest;  if  not,  the  question  always  turns  upon  this,  was  the  arrest 
bona  fide?  Was  the  act  done  fairly  and  in  pursuit  of  an  offender, 
or  by  design,  or  mahce,  or  ill  will?  ...  It  would  be  a  terrible  thing, 
if,  under  probable  cause,  an  arrest  could  not  be  made  .  .  .  ;  many 
an  innocent  man  has  and  may  be  taken  up  upon  suspicion ;  but 
the  mischief  and  inconvenience  to  the  public  in  this  point  of  view, 
is  comparatively  nothing;  it  is  of  great  consequence  to  the  police  of 
the  country." 

The  justification  of  an  arrest  by  a  private  person  was  made  in  Allen 
V.  Wright  (8  Car.  and  Payne,  522),  to  depend  on  first,  the  fact  that  a 
felony  had  been  actually  committed;  and  second, that  the  circumstances 
were  such  that  a  reasonable  person,  acting  without  passion  and  preju- 
dice, would  have  fairly  suspected  the  plaintiff  of  being  the  person  who 
did  it. 

These  principles  are  affirmed  in  this  State  in  Mix  v.  Clute  (3  Wend. 
350),  in  very  distinct  terms.  "  If  a  felony  has  been  committed  by  the 
person  arrested,  the  arrest  may  be  justified  by  any  person  without 
warrant.  If  an  innocent  person  is  arrested  upon  suspicion  by  a  pri- 
vate individual,  such  individual  is  excused  if  a  felony  was  in  fact 
committed,  and  there  was  reasonable  ground  to  suspect  the  person 
arrested.  But  if  no  felony  was  committed  by  any  one,  and  a  private 
individual  arrest  without  warrant,  such  arrest  is  illegal,  though  an 
officer  would  be  justified  if  he  acted  upon  information  from  another 
which  he  had  reason  to  believe." 


602 


TILLMAN   V.   BEARD. 


[chap.  V. 


The  fact  being  proved  in  this  case  that  a  felony  had  in  fact  been  com- 
mitted, I  have  no  hesitation  in  saying  that,  however  unfortunate  it 
was  to  the  plaintiff,  the  circumstances  fully  justified  the  suspicion  which 
led  to  her  arrest.  It  is  claimed  that  these  circumstances  should  have 
been  submitted  to  the  jury.  Not  so;  a  verdict  finding  no  reasonable 
ground  of  suspicion  would  have  been  against  evadence.  There  was  no 
conflict  of  testimony,  and  that  the  arrest  was  made  without  mahce, 
in  good  faith,  and  upon  reasonable  grounds,  is  to  my  mind  incontro- 
vertible. 

The  appeal  appears  to  me  to  have  been  taken  upon  a  misapprehen- 
sion of  the  construction  and  effect  of  the  statutes  conferring  power  on 
the  policeman.  I  think  the  power  perfectly  clear,  and  I  notice 
that  the  rules  and  regulations  of  the  board  of  police  are  in  con- 
formity therewith;  and  it  is  made  the  duty  of  the  officer  to  take 
the  arrested  person  immediately  before  the  Police  Court,  or  if  made 
at  night  or  when  the  courts  are  not  open,  immediately  to  the  station 
house,  where  the  officer  on  duty  is  required  to  examine  whether  there 
is  reasonable  ground  for  the  complaint,  and  if  so,  to  cause  the  party 
to  be  taken  before  the  court  the  next  morning.  Under  such  a  system, 
innocent  parties  may  sometimes  be  subjected  to  inconvenience  and 
mortification;  but  any  more  lax  rules  would  be  greatly  dangerous  to 
the  peace  of  the  community  and  make  the  escape  of  criminals  frequent 
and  easy. 

The  judgment  should  be  affirmed. 

All  the  judges  concurring. 

Judgment  affirmed. 


TILLMAN  V.   BEARD. 


Supreme  Court  of  Michigan,  1899. 

[Reported  121  Mich.  475.] 

Grant,  C.  J.  The  declaration  contains  four  counts,  and 
alleges  assault  and  battery,  false  imprisonment,  and  malicious 
prosecution. 

Plaintiff  was  a  vender  of  popcorn  and  peanuts.  He  had  a  machine 
5  feet  2  inches  long,  2V2  feet  wide,  and  about  5^  feet  high.  The 
machinery  was  operated  by  steam  generated  by  a  gasoline  burner. 
Plaintiff  had  obtained  permission  from  a  merchant  in  the  \dllage  of 
Morrice  to  put  his  stand  in  the  street  in  front  of  his  store.    There  was 


SECT.  II.]  STOREY   V.   STATE.  603 

an  ordinance  prohibiting  the  exercise  of  his  vocation  without  taking 
out  a  license.  He  had  taken  out  no  Hcense.  The  defendant  was 
president  of  the  village.  He  found  plaintiff  located  as  above  stated, 
without  a  license.  He  took  hold  of  his  machine,  ran  it  out  into  the 
street,  and  ordered  the  village  marshal  to  arrest  plaintiff.  The  mar- 
shal arrested  him,  and  took  him  to  jail,  where  he  was  confined  about 
three  hours.    He  was  then  released.^  .  .  . 

The  first  arrest,  without  a  complaint  and  warrant,  was  illegal.  Officers 
are  justified  in  arresting  without  a  warrant  only  in  cases  of  felony  and 
breaches  of  the  peace.  This  is  elementary.  It  is  needless  to  cite  au- 
thorities. Plaintiff  was  engaged  in  no  act  dangerous  to  the  public, 
or  liable  to  cause  disturbance  upon  the  streets.  The  act  was  not 
malum  per  se,  but  only  malum  prohibitum.  There  was  no  danger  of 
escape.  There  was  no  obstruction  in  the  public  highway  requiring 
immediate  removal  for  the  convenience  of  the  public.  The  respondent 
may  have  acted  in  good  faith  in  ordering  the  arrest  of  plaintiff,  but  he 
certainly  acted  hastily,  and  without  any  legal  authority.  The  statute 
did  not  give  him,  as  conservator  of  the  peace,  the  authority  to  imprison 
citizens  of  the  village  in  this  summary  manner.  By  ordering  the  arrest, 
he  made  himself  responsible  for  it,  and  liable  for  all  its  consequences. 
Webb,  Pol.  Torts,  264,  and  authorities  there  cited;  Veneman  i'.  Jones, 
118  Ind.  41;  Gilbert  v.  Emmons,  42  111.  143. 


STOREY  V.   STATE. 

Supreme  Court  of  Alabama.     1882. 

[Reported  71  Ala.  329.] 

The  defendant  was  convicted  of  the  murder  of  Josiah  Hall.  To  the 
refusal  to  give  certain  charges  to  the  jury  the  defendant  excepted.^ 

SoMERViLLE,  J.  .  .  .  The  record  contains  some  evidence  remotely 
tending  to  show  that  the  prisoner  was  in  pursuit  of  the  deceased  for  the 
purpose  of  recapturing  a  horse,  which  the  deceased  had  either  stolen, 
acquired  b}'  fraud,  or  else  unlawfully  converted  to  his  own  use. 

If  the  property  was  merely  converted,  or  taken  possession  of  in  such 
manner  as  to  constitute  a  civil  trespass,  without  an}'  criminal  intent,  it 
would  not  be  lawful  to  recapture  it  by  an}-  exercise  of  force  which  would 

1  Only  so  much  of  the  opinion  as  deals  with  this  arrest  is  given.  —  Ed. 
*  This  short  statement  is  substituted  for  that  of  the  reporter.    Part  of  the  opinion 
only  is  given.  —  Ed. 


604  STOREY   V.    STATE.  [CHAP.  V. 

amount  even  to  a  breach  of  the  peace,  much  less  a  felonious  homicide. 

—  Street  v.  Sinchiir,  71  Ala.  110;  Burns  v.  Campbell,  71  Ala.  271. 
Taking  the  hypothesis  that  there  was  a  larceny  of  the  horse,  it  be- 
comes important  to  inquire  what  would  then  be  the  rule.  The  larceny 
of  a  horse  is  a  felony  in  this  State,  being  specially  made  so  by  statute^ 
without  regard  to  the  value  of  the  animal  stolen.  — Code,  1876,  §  4358. 
The  fifth  charge  requested  by  the  defendant  is  an  assertion  of  the  prop- 
osition that  if  the  horse  was  feloniously  taken  and  carried  away  by  the 
deceased,  and  there  was  an  apparent  necessity  for  killing  deceased  in 
order  to  recover  the  property  and  prevent  the  consummation  of  the 
felony,  the  homicide  would  be  justifiable.  The  question  is  thus  pre- 
sented, as  to  the  circumstances  under  which  one  can  kill  in  order  to 
prevent  the  perpetration  of  a  larcen\-  which  is  made  a  felony  by  statute 

—  a  subject  full  of  difficulties  and  conflicting  expressions  of  opinion 
from  the  very  earliest  history  of  our  common-law  jurisprudence.  The 
broad  doctrine  intimated  by  Lord  Coke  was,  that  a  felon  may  be  killed 
to  prevent  the  commission  of  a  felony  without  an}'  inevitable  cause,  or 
as  a  matter  of  mere  choice  with  the  slayer.  —  3  Inst.  56.  If  such  a 
rule  ever  prevailed,  it  was  at  a  very  early  day,  before  the  dawn  of  a 
milder  civilization,  with  its  wiser  system  of  more  benignant  laws  ;  for 
Blackstone  states  the  principle  to  be,  that  "  where  a  crime,  in  itself 
capital,  is  endeavored  to  be  committed  by  force,  it  is  lawful  to  repel  that 
force  by  the  death  of  the  party  attempting."  4  Com.  181.  The  rea- 
son he  assigns  is,  that  the  law  is  too  tender  of  the  public  peace  and  too 
careful  of  the  lives  of  the  subjects  to  "  suffer,  with  impunity,  any  crime 
to  be  prevented  by  death,  unless  the  same,  if  committed,  would  also  be 
punished  by  death."  It  must  be  admitted  that  there  was  far  more 
reason  in  this  rule  than  the  one  intimated  by  Lord  Coke,  although  all 
felonies  at  common  law  were  punishable  by  death,  and  the  person  kill- 
ing, in  such  cases,  would  seem  to  be  but  the  executioner  of  the  law. 
Both  of  these  views,  however,  have  been  repudiated  by  the  later 
authorities,  each  being  to  some  extent  mnterially  modified.  All  admit 
that  the  killing  can  not  be  done  from  mere  choice  ;  and  it  is  none  the 
less  certain  that  the  felon}'  need  not  be  a  capital  one  to  come  within  the 
scope  of  the  rule.  Gray  r.  Combs,  7  J.  J.  Marsh.  458 ;  Cases  on  Self- 
Defence  (Horr.  &  Thomp.),  725,  867  ;  Oliver  v.  The  State,  17  Ala. 
587  ;  Carroll  v.  The  State,  23  Ala.  28. 

We  find  it  often  stated,  in  general  terms,  both  by  text  writers  and 
in  many  well  considered  cases,  that  one  may,  as  Mr.  Bishop  expresses 
it,  "  oppose  another  who  is  attempting  to  perpetrate  any  felony,  to  the 
extinguishment,  if  need  be,  of  the  felon's  existence."  —  1  Bish.  Cr.  Law, 
§§  849-50 ;  The  State  v.  Rutherford,  1  Hawks,  457.  It  is  observed  by 
Mr.  Bishop,  who  is  an  advocate  of  this  theory,  that  "  the  practical 
carrying  out  of  the  right  thus  conceded,  is,  in  some  circumstances, 
dangerous,  and  wherever  admitted,  it  should  be  carefully  guarded." 
1  Bish.  Cr.  Law,  §  855. 


SECT.  II.]  STOPwEY    V.  STATE.  605 

After  a  careful  consideration  of  the  subject  we  are  fully  persuaded 
that  the  rule,  as  thus  stated,  is  neither  sound  in  principle,  nor  is  it  sup- 
ported by  the  weight  of  modern  authority.  The  safer  view  is  that  taken 
by  Mr.  AYharton,  that  the  rule  does  not  authorize  the  killing  of  persons 
attempting  secret  felonies,  not  accompanied  by  force. — Whart.  on 
Hom.  §  539.  Mr.  Greenleaf  confines  it  to  "  the  prevention  of  any 
atrocious  crime  attempted  to  be  committed  b}'  force  ;  such  as  murder, 
robbery,  house-breaking  in  the  night-time,  rape,  mayhem,  or  an}-  other 
act  of  felony  against  the  person"  (3  Greenl.  Ev.  115)  ;  and  such  seems 
to  be  the  general  expression  of  the  common  law  text  writers,  —  1  Russ. 
Cr.  665-70;  4  Black.  Com.  178-80;  Whart.  Amer.  Cr.  Law,  298-403; 
1  East  P.  C.  271  ;  1  Hale,  P.  C.  488  ;  Foster,  274.  It  is  said  by  the 
authors  of  Cases  on  Self-Defence  that  a  killing  which  "  appears  to  be 
reasonably  necessary  to  prevent  a  forcible  and  atrocious  felony  against 
property,  is  justifiable  homicide."  "This  rule,"  it  is  added,  ''the 
common-law  writers  do  not  extend  to  secret  felonies,  or  felonies  not 
accompanied  with  force,"  although  no  modern  case  can  be  found  ex- 
pressly so  adjudging.  They  further  add  :  "  It  is  pretty  clear  that  the 
right  to  kill  in  defence  of  property  does  not  extend  to  cases  of  larceny, 
which  is  a  crime  of  a  secret  character,  although  the  cases  which  illus- 
trate this  exception  are  generall}'  cases  of  theft  of  articles  of  small 
Yalue."  —  Cases  on  Self-Defence  (Horr.  &  Thomp.),  901-2.  This 
was  settled  in  Eeg.  v.  Murphy,  2  Crawf.  &  Dix  C.  C.  20,  where  the 
defendant  was  convicted  of  shooting  one  detected  in  feloniously  carry- 
ing away  fallen  timber  which  he  had  stolen  from  the  premises  of  the 
prosecutor,  the  shooting  being  done  very  clearly  to  prevent  tlie  act, 
which  was  admitted  to  be  a  felony.  Doherty,  C.  J.,  said  :  "  I  can  not 
allow  it  to  go  abroad  that  it  is  lawful  to  fire  upon  a  person  committing 
a  trespass  and  larceny  ;  for  that  would  be  punishing,  perhaps  with 
death,  oflfences  for  which  the  law  has  provided  milder  penalties."  This 
view  is  supported  by  the  following  cases:  State  r.  Vance,  17  Iowa, 
144  ;  McClelland  v.  Kay,  14  B.  Monroe,  106,  and  others  not  necessary 
to  be  cited.     See  Cases  on  Self-Defence,  p.  901,  note. 

There  is  no  decision  of  this  court,  within  our  knowledge,  which  con- 
flicts with  these  views.  It  is  true  the  rule  has  been  extended  to  statu- 
tory felonies,  as  well  as  felonies  at  common  law,  which  is  doubtless  the 
correct  doctrine,  but  the  cases  adjudged  have  been  open  crimes  com- 
mitted b}'  force,  and  not  those  of  a  secret  nature.  — Oliver's  case,  17 
Ala.  587;  Carroll's  case,  23  Ala.  28  ;  Dill's  case,  25  Ala.  15. 

In  Pond  V.  The  People,  8  Mich.  150,  after  endorsing  the  rule  which 
we  have  above  stated,  it  was  suggested  by  Campbell,  J.,  that  there 
might  possibly  be  some  "  exceptional  cases"  not  within  its  influence,  a 
proposition  from  which  we  are  not  prepared  to  dissent.  And  again  in 
Gray  v.  Combs,  7  J.  J.  Marsh.  478,  483,  it  was  said  by  Nicholas,  J., 
that  the  right  to  kill  in  order  to  prevent  the  perpetration  of  crime 
should  depend  "  more  upon  the  character  of  the  crime,  and  the  time 
and   manner  of  its  attempted  perpetration,  than  upon  the  degree  of 


606  STOREY    V.  STATE.  [CHAP.  V. 

punishment  attached  by  law."  There  is  much  reason  in  this  view,  and 
a  strong  case  might  be  presented  of  one's  shooting  a  felon  to  prevent 
the  asportation  of  a  stolen  horse  in  the  night-time,  where  no  opportu- 
nity is  afforded  to  recognize  the  thief,  or  obtain  speedy  redress  at  law. 
Both  the  Roman  and  Athenian  laws  made  this  distinction  in  favor  of 
preventing  the  perpetration  of  theft  by  night,  allowing,  in  each  instance, 
the  thief  to  be  killed  when  necessary,  if  taken  in  the  act.  —  4  Black. 
Com.  180,  181. 

The  alleged  larceny  in  the  present  case,  if  it  occurred  at  all,  was  in 
the  open  daylight,  and  the  defendant  is  not  shown  to  have  been  unable 
to  obtain  his  redress  at  law.  Where  opportunity  is  afforded  to  secure 
the  punishment  of  the  offender  by  due  course  of  law,  the  case  must  be 
an  urgent  one  which  excuses  a  killing  to  prevent  any  felony,  much  less 
one  not  of  a  forcible  or  atrocious  nature. — Whart.  Hom.  §§  536-8. 
"  No  man,  under  the  protection  of  the  law,"  says  Sir  Michael  Foster, 
"  is  to  be  the  avenger  of  his  own  wrongs.  If  they  are  of  such  a  nature 
for  which  the  law  of  society  will  give  him  an  adequate  remedy,  thither 
he  ought  to  resort."  —  Foster,  296.  It  is  everywhere  settled  that  the 
law  will  not  justify  a  homicide  which  is  perpetrated  in  resisting  a  mere 
civil  trespass  upon  one's  premises  or  property,  unaccompanied  by  force, 
or  felonious  intent.  — Carroll's  case,  23  Ala.  28  ;  Clark's  Man.  Cr.  Law, 
§§  355-7  ;  Whart.  on  Hom.  §  540.  The  reason  is  that  the  preservation 
of  human  life  is  of  more  importance  than  the  protection  of  property. 
The  law  may  afford  ample  indemnity  for  the  loss  of  the  one,  while  it 
utterly  fails  to  do  so  for  the  other. 

The  rule  we  have  above  declared  is  the  safer  one,  because  it  better 
comports  with  the  public  tranquillity  and  the  peace  of  society.  The 
establishment  of  any  other  would  lead  to  disorderly  breaches  of  the 
peace  of  an  aggravated  nature,  and  therefore  tend  greatl}^  to  cheapen 
human  life.  This  is  especiallj'  true  in  view  of  our  legislative  policy 
which  has  recentl}'  brought  man}'  crimes,  formerl}-  classed  and  punished 
as  petit  larcenies  within  the  class  of  statutory  felonies.  It  seems  settled 
that  no  distinction  can  be  made  between  statutory  and  common  law 
felonies,  whatever  may  be  the  acknowledged  extent  of  the  rule.  Oliver's 
case,  17  Ala.  587;  Cases  on  Self-Def.  901,  867  ;  Bish.  Stat.  Cr.  §  139. 
The  stealing  of  a  hog,  a  sheep,  or  a  goat  is,  under  our  statute,  a  felony, 
without  regard  to  the  pecuniary  value  of  the  animal.  So  would  be  the 
larceny  of  a  single  ear  of  corn,  which  is  "  a  part  of  any  outstanding 
crop."  —  Code,  §  4358;  Acts  1880-81,  p.  47.  It  would  be  shocking  to 
the  good  order  of  government  to  have  it  proclaimed,  with  the  sanction 
of  the  courts,  that  oue  may,  in  the  broad  daylight,  commit  a  wilful 
homicide  in  order  to  prevent  the  larceny  of  an  ear  of  corn.  In  our 
judgment  the  fifth  charge,  requested  by  the  defendant,  was  properly 
refused. 

It  cannot  be  questioned,  however,  that  if  there  was  in  truth  a  larceny 
of  the  prisoner's  horse,  he,  or  any  other  private  person,  had  a  lawful 
right  to  pursue  the  thief  for  the  purpose  of  arresting  him,  and  of  recap- 


SECT.  II.]  THOMAS   V.    KINKEAD.  607 

turing  the  stolen  property.  —  Code,  §§  4668-70 ;  1  Bish.  Cr.  Proc 
§§  164-5.  He  is  not  required,  in  such  case,  to  inform  the  party  flee- 
ing of  his  purpose  to  arrest  him,  as  in  ordinary  cases.  —  Code,  §  4669. 
And  he  could,  if  resisted,  repel  force  with  force,  and  need  not  give 
back,  or  retreat.  If,  under  such  circumstances,  the  party  making 
resistance  is  unavoidably  killed,  the  homicide  would  be  justifiable.  2 
Bish.  Cr.  Law,  §  647 ;  1  Russ.  Cr.  665 ;  State  v.  Roane,  2  Dev.  58.  If 
the  prisoner's  purpose  was  honestly  to  make  a  pursuit,  he  would  not  for 
this  reason  be  chargeable  with  the  imputation  of  having  wrongfully 
brought  on  the  difficulty ;  but  the  law  would  not  permit  him  to  resort  to 
the  pretence  of  pursuit,  as  a  mere  colorable  device,  beneath  which  to 
perpetrate  crime. 


THOMAS   V.  KINKEAD. 
Supreme  Court  of  Arkansas.     1892. 

[Reported  55  Ark.  502.] 

Mansfield,  J.  This  action  was  brought  by  the  widow  and  minor  chil- 
dren of  John  Thomas,  deceased,  against  Ewing  Kinkead,  a  constable 
of  Pulaski  county,  and  the  sureties  on  his  official  bond,  to  recover 
damages  for  the  alleged  wrongful  killing  of  Thomas  by  Jesse  F.  Heard, 
a  deputy  of  the  defendant  Kinkead  as  such  constable.  Heard  was 
also  made  a  defendant.  The  complaint  avers  that  the  act  of  killing 
was  committed  under  color  of  a  warrant  for  the  arrest  of  Thomas,  to 
answer  for  a  misdemeanor  charged  against  him  before  a  justice  of  the 
peace,  and  that  it  was  done  wantonly  and  without  cause. 

The  defendants  by  their  pleading  justifj'  the  killing  as  having  been 
done  b}'  Heard  in  self-defence,  while  lawfully  exercising  his  power  to 
execute  the  warrant  mentioned  in  the  complaint,  and  while  Tliomas 
was  unlawfully  resisting  arrest  and  attempting  to  escape.  The  appeal 
is  from  a  judgment  rendered  on  the  verdict  of  a  jury  against  the 
plaintiffs. 

The  death  of  Thomas  resulted  from  a  wound  inflicted  by  a  pistol- 
shot,  and  the  evidence  as  to  the  immediate  circumstances  of  the  homi- 
cide was  such  as  to  make  it  questionable  whether  he  had  been  actually' 
placed  under  arrest  before  he  was  shot.  It  was  contended  at  the  trial 
that  his  arrest  had  been  accomplished,  and  that  he  was  killed  while 
attempting  to  break  awa}'  from  the  custod}'  of  the  officer.  As  appli- 
cable to  this  view  of  the  facts,  the  court,  against  the  objection  of  the 
plaintiffs,  gave  the  jnvy  the  following  instruction:  "If  the  jury  find 
from  the  evidence  that  Heard  had  actuall}'  arrested  Thomas,  whether 
for  felony  or  misdemeanor,  if  Thomas  attempted  to  get  away,  Heard 
had  a  right  to  shoot  him,  if  this  sliooting  was  necessary  to  prevent 


608  THOMAS    V.    KINKEAD.  [CHAP.  V. 

his  escape;  provided  Heard  acted  in  the  exercise  of  due  caution  and 
prudence." 

In  repeating  substantially  the  same  charge  in  a  diflferent  connection, 
the  jury  were  told  that  life  can  be  taken  to  prevent  an  escape  only  in 
case  of  extreme  necessity  and  when  the  officer  has  exhausted  all  other 
means  of  enforcing  the  prisoner's  submission.  The  duty  which  the  law 
enjoins  upon  an  officer  to  exercise  his  authority  with  discretion  and 
prudence  was  also  fully  and  properly  stated,  and  the  jury  were  in  effect 
instructed  that  the  needless  killing  of  a  prisoner  would  in  all  cases  be 
wrongful.  In  another  part  of  the  charge  it  was  stated,  as  an  admis- 
sion of  the  pleadings,  that  the  offence  of  which  Thomas  was  accused 
was  a  misdemeanor.  And  in  other  respects  the  charge  of  the  court  was 
such  that  the  plaintiffs  were  not  prejudiced  b}'  the  instruction  we  have 
quoted,  if  the  life  of  a  prisoner  may  be  taken  under  any  circumstances 
merely  to  prevent  his  escape  after  arrest  for  a  misdemeanor. 

The  doctrine  of  the  court's  charge  is  approved  by  Mr.  Bishop,  who 
states  it  in  his  work  on  Criminal  Procedure  substantialh-  in  the  lan- 
guage employed  b}-  the  trial  judge.  1  Bishop,  Cr.  Pro.,  sec.  161.  In 
his  note  on  the  section  cited,  the  author  refers  to  his  work  on  Criminal 
Law  (vol.  2,  sees.  647,  650)  and  to  two  cases  decided  b}-  the  Supreme 
Court  of  Texas  —  Caldwell  v.  State,  41  Texas,  86,  and  Wright  v.  State, 
44  Texas,  645.  In  the  first  of  these  cases,  a  prisoner  who  had  been 
arrested  for  horse  stealing  broke  away  from  the  custody  of  the  officer, 
and  the  latter  shot  and  killed  him  as  he  ran  in  the  effort  to  make  his 
escape.  It  was  held  that  the  officer  was  rightly  convicted  of  murder 
in  the  second  degree  —  the  evidence  showing  that  the  prisoner  was 
unarmed,  and  neither  attacking  nor  resisting  the  officer.  The  judge 
who  delivered  the  opinion  said:  "  The  law  places  too  high  an  estimate 
on  a  man's  life,  though  he  be  ...  a  prisoner,  to  permit  an  officer  to 
kill  him  while  unresisting,  simply  to  prevent  an  escape."  But  as  the 
arrest  was  for  a  felony,  it  may  be  that  the  decision  was  controlled  by  a 
statute  of  that  State  which  provides  that  an  "  officer  executing  an  order 
of  arrest  shall  not  in  any  case  kill  one  who  attempts  to  escape,  unless 
in  making  or  attempting  such  escape,  the  life  of  the  officer  is  endangered 
or  he  is  threatened  with  great  bodily  injury."  However  that  may  have 
been,  the  case  gives  no  support  to  the  text  in  connection  with  which  it 
is  cited.  Nor  is  such  support  to  be  found  in  the  case  of  Wright  v. 
State,  where  the  decision  was  that  the  power  conferred  b}'  a  Texas 
statute  upon  an  officer  having  the  custod}'  of  a  convicted  felon  to  take 
the  life  of  the  prisoner  to  prevent  his  escape  does  not  extend  to  an  officer 
attempting  to  re-arrest  an  escaped  convict. 

The  rule  laid  down  without  qualification  in  "  Criminal  Procedure  "  is 
stated  only  as  "  a  general  proposition  "  in  one  of  the  sections  referred 
to  in  the  work  on  Criminal  Law.  From  the  text  of  the  latter  reference 
is  made  to  the  treatise  of  Russell  on  Crimes  and  to  the  earlier  works  of 
Hale  and  Hawkins.  But  these  writers  all  appear  to  limit  the  applica- 
tion of  the  rule  to  cases  of  felon}'  or  to  cases  where  the  jailer  or  other 


SECT.  II.]  THOMAS    V.    KINKEAD.  609 

officer  having  the  custody  of  a  prisoner  is  assaulted  by  the  latter  in  his 
effort  to  escape  and  the  officer  kills  him  in  self-defence.  1  Hale,  P.  C. 
481,  496  ;  1  Russell  on  Crimes,  666,  667  ;  1  Hawkins,  P.  C.  81,  82. 
The  decisions  cited  by  Mr.  Bishop  in  the  section  last  referred  to,  as  far 
as  we  have  had  the  opportunity  to  examine  them,  go  no  further  than  the 
authors  we  have  mentioned.  U.  S.  v.  Jailer,  etc.,  2  Abb.  265  ;  State 
V.  Anderson,  1  Hill,  S.  B.  327 ;  Regina  v.  Dadson,  14  Jur.  1051.  See 
also  4  Blackstone,  180. 

The  case  of  State  v.  Sigman,  106  N.  C.  728;  S.  C.  11  S.  E.  Rep. 
520,  is  relied  upon  as  sustaining  the  instruction  in  question.  In  that 
case  an  officer  was  indicted  for  an  assault  with  a  deadly  weapon,  com- 
mitted by  discharging  a  pistol  at  a  person  accused  of  a  misdemeanor, 
and  who  had  escaped  from  the  officer's  custody  and  was  fleeing  to  avoid 
re-arrest.  The  officer  being  unable  to  overtake  the  prisoner  fired  upon 
him.  He  was  convicted  and  the  judgment  of  the  trial  court  was  af- 
firmed, the  Supreme  Court  holding  that  the  defendant  was  guilty  of  an 
assault,  whether  his  intention  in  firing  was  to  hit  the  escaped  prisoner 
or  simpl}'  to  intimidate  him  and  thereby  induce  him  to  surrender.  This 
ruling  followed  as  a  conclusion  from  two  propositions  stated  in  the 
opinion.  These  are:  (1)  That  an  officer  who  kills  a  person  charged 
with  a  misdemeanor  and  fleeing  from  him  to  avoid  arrest  will  at  least 
be  guilty  of  manslaughter.  (2)  That  where  a  prisoner  "  has  already 
escaped,"  no  means  can  be  used  to  re-capture  him  which  would  not  have 
been  justifiable  in  making  the  first  arrest ;  and  that  if  in  pursuing  him 
the  officer  intentionally  kills  him,  it  is  murder.  But  the  second  proposi- 
tion is  preceded  by  the  following  paragraph  of  the  opinion  upon  which 
the  appellees  specially  rely:  "After  an  accused  person  has  been 
arrested,  an  officer  is  justified  to  detain  him  in  custody,  and  he  may 
kill  his  prisoner  to  prevent  his  escape,  provided  it  becomes  necessary, 
whether  he  be  charged  with  a  felony  or  a  misdemeanor."  Citing  the 
first  volume  of  Bishop's  Criminal  Procedure.  The  view  thus  expressed 
does  not  appear  to  be  consistent  with  the  court's  decision.  Nor  does  it 
seem  to  be  an  unqualified  approval  of  the  rule  as  it  is  stated  in  Bishop's 
Criminal  Procedure.  As  stated  in  the  quotation  made,  it  seems  to  be 
laid  down  with  reference  only  to  cases  where  a  prisoner  resists  by  force 
the  effort  of  the  officer  to  prevent  him  from  "  breaking  away  "  and  is 
killed  in  the  struggle  or  affray  which  follows.  In  the  case  then  before 
the  court  the  prisoner  had  entirely  escaped ;  and  having  been  subse- 
quently found,  had  run  some  distance  before  he  was  shot  at.  There 
was  no  occasion  therefore  for  deciding  whether  the  shooting,  although 
not  in  self-defence,  would  have  been  justifiable  if  it  had  been  done  in  an 
effort  to  detain  the  prisoner  in  the  officer's  custody.  But  we  are  wholly 
unable  to  perceive  any  ground  for  a  distinction  between  the  latter  case 
and  that  on  which  the  court's  ruling  was  made.  In  a  paragraph  of  the 
opinion  preceding  that  from  which  we  have  quoted,  in  speaking  of 
the  case  of  one  who,  being  charged  with  a  misdemeanor,  flees  from 
the  officer  to  avoid  arrest,  the  court  said:  "The  accused  is  shielded. 


610  THOMAS    V.    KINKEAD.  [CHAP.  V. 

.  .  .  even  from  an  attempt  to  kill,  .  .  .  by  the  merciful  rule  which 
forbids  the  risk  of  human  life  or  the  shedding  of  blood  in  order  to  bring 
to  justice  one  who  is  charged  with  so  trivial  an  offence,  when  it  is  prob- 
able that  he  can  be  arrested  another  day  and  held  to  answer."  This 
humane  principle  was  permitted  to  prevail  against  the  officer  in  the 
case  decided,  although  the  person  assaulted  had  been  arrested  and  was 
shot  at  in  the  endeavor  made  to  re-arrest  him.  Wh}-  should  it  not 
also  protect  the  life  of  the  prisoner  arrested  on  a  similar  charge  who 
endeavors  forciblj'  to  break  away  from  the  officer  but  offers  no  violence 
to  the  latter  endangering  his  life  or  exposing  his  person  to  great 
harm? 

The  case  of  Head  v.  Martin,  3  S.  W.  Rep.  (Ky.)  622,  is  also  cited  by 
the  appellees.  But  the  only  ruling  there  made,  as  indicated  b}'  the 
syllabus,  was  that  a  peace  officer,  having  arrested  one  accused  of  a 
misdemeanor,  cannot,  when  he  is  fleeing,  kill  him  to  prevent  his  escape  ; 
and  all  that  the  c6urt  says  is  strongly  against  the  contention  of  the  ap- 
pellee on  the  point  we  are  considering.  On  the  point  embraced  in  the 
quotation  of  counsel  from  the  opinion,  in  that  case,  the  jur}'  in  the 
present  case  were  properly  charged  b\'  instructions  other  than  that  now 
under  consideration.  The  onl}^  question  presented  by  the  latter  is 
whether  an  officer  having  in  his  custody  a  prisoner  accused  of  a  misde- 
meanor may  take  his  life  if  he  attempts  to  break  away,  where,  in  the 
language  of  the  court's  charge,  "  no  other  means  are  availal)le  "  to 
prevent  his  escape.  A  resort  to  a  measure  so  extreme  in  cases  of  mis- 
demeanor was  never  permitted  by  the  common  law.  1  East,  P.  C.  302. 
That  law  has  not,  it  is  believed,  lost  any  of  its  huraanit}-  since  the  time 
of  the  writer  we  have  just  cited;  and  no  statute  of  this  State  operates 
to  restrain  its  mercy.  We  have  adopted  its  rule  in  making  arrests  in 
cases  of  felony.  (Carr  v.  The  State,  43  Ark.  99.)  But  without  legis- 
lative authority  the  severity  of  a  remote  age  ought  not  to  be  exceeded 
in  dealing  with  those  who  are  accused  of  smaller  offences. 

East,  in  his  Pleas  of  the  Crown,  after  stating  the  rule  that  a  felon 
fleeing  from  justice  may  be  lawfulh*  killed  "  where  he  cannot  be  other- 
wise overtaken,"  says:  "  The  same  rule  holds  if  a  felon  after  arrest 
break  away  as  he  is  carrying  to  gaol,  and  his  pursuers  cannot  retake 
without  killing  him.  But  if  he  may  be  taken  in  any  case  without  such 
severit}-,  it  is  at  least  manslaughter  in  him  who  kills  him."  (1  East, 
P.  C.  298.)  No  distinction,  it  will  be  noticed,  is  made  between  the 
case  of  a  felon  fleeing  from  arrest  and  that  of  one  "  breaking  away  " 
after  arrest;  and  such  is  still  the  law.  No  reason  whatever  is  given 
for  making  such  a  distinction  in  cases  of  misdemeanor,  and  we  have 
found  no  adjudged  case  which  in  our  opinion  supports  it.  See  Clem- 
ments  v.  State,  50  Ala.  117  ;  Head  v.  Martin,  3  S.  W.  supra;  Reneau 
V.  State,  2  Lea,  720. 

In  United  States  v.  Clark,  31  Fed.  Rep.  710,  Mr.  Justice  Brown 
saj's :  "  The  general  rule  is  well  settled,  b}-  elementary  writers  upon 
criminal  law,  that  an  officer  having  custody  of  a  person  charged  with 


I 


SECT.  II.] 


THOMAS   V.    KINKEAD. 


611 


felony  may  take  his  life,  if  it  becomes  absolntel}'  necessary  to  do  so  to 
prevent  bis  escape;  but  hie  ma}'  not  do  this  if  he  be  charged  simply  with 
a  misdemeanor,  the  theory  of  the  law  being  that  it  is  better  that  a  mis- 
demeanant escape  than  tbat  human  life  be  taken."  And  he  expresses 
a  doubt  whether  the  law  permitting  life  to  be  taken  to  prevent  an  escape 
is  applicable  at  the  present  day  even  to  all  cases  of  felony.  (See  also 
State  V.  Bryant,  65  N.  C.  355)  ;  Reneau  v.  State,  2  Lea,  supra. 

It  has  been  said  that  the  officers  of  the  law  are  "  clothed  with  its 
sanctity  "  and  "represent  its  majesty."  Head  v.  Martin,  3  S.  W.  Rep. 
623.  And  the  criminal  code  has  provided  for  the  punishment  of  those 
who  resist  or  assault  them  when  engaged  in  the  discharge  of  their 
duties,  Mansf  Dig.,  sees.  1765-67.  But  the  law-making  power 
itself  could  not,  under  the  constitution,  inflict  the  death  penalty 
as  a  punishment  for  a  simple  misdemeanor.  (Art.  2,  sec.  9,  const.) 
And  it  would  ill  become  the  "  majesty  "  of  the  law  to  sacrifice  a  human 
life  to  avoid  a  failure  of  justice  in  the  case  of  a  pett}'  offender  who  is 
often  brought  into  court  without  arrest  and  dismissed  with  a  nominal 
fine.  It  is  admitted  that  an  officer  cannot  lawfully  kill  one  who  merely 
flees  to  avoid  arrest  for  a  misdemeanor,  although  it  ma^'  appear  that  he 
can  never  be  taken  otherwise.  If  he  runs,  then,  before  the  ofl[icer  has 
laid  his  hands  upon  him  with  words  of  arrest,  he  may  do  so  without 
danger  to  his  life.  But  if,  b}-  surprise  or  otherwise,  he  be  for  a  moment 
sufficientl}'  restrained  to  constitute  an  arrest  and  then  "break  away," 
the  officer  ma}'  kill  him  if  he  cannot  overtake  him.  Such  is  the  effect 
of  the  argument  and  of  the  rule  in  support  of  which  it  is  made.  We 
can  see  no  principle  of  reason  or  justice  on  which  such  a  distinction  can 
rest,  and  we  therefore  hold  that  the  force  or  violence  which  an  pfl^cer 
may  lawfully  use  to  prevent  the  escape  of  a  person  arrested  for  a  mis- 
demeanor is  no  greater  than  such  as  might  have  been  rightful]}-  employed 
to  effect  his  arrest.  In  making  the  arrest  or  preventing  the  escape,  the 
"^ficeTmay  exert  such  physical  force  as  is  necessary  on  the  one  hand 
to  effect  the  arrest  by  overcoming  the  resistance  he  encounters,  or  on 
the  other  to  subdue  the  efforts  of  the  prisoner  to  escape  ;  but  he  can- 
hot  in  either  case  take  the  life  of  the  accused,  or  even  inflict  upon  him 
a  great  bodily  harm,  except  to  save  his  own  life  or  to  prevent  a  like 
harm  to  himself 

The  circuit  court  erred  in  so  much  of  its  charge  as  was  not  in  har- 
mony with  this  statement  of  the  law.  In  other  respects  the  instructions 
contain  no  error  prejudicial  to  the  appellant.  For  the  error  indicated 
the  judgment  will  be  reversed,  and  the  cause  remanded  for  a  new 
trial. 


,'^v^- 


612  REGINA   V.    GRIFFIN.  CHAP.   V. 

Foster,  C.  L.  262.  Parents,  masters,  and  other  persons,  having 
authoritj'  in  foro  domestko,  may  give  reasonable  correction  to  those 
under  their  care ;  and  if  death  ensueth  without  their  fault,  it  will  be 
no  more  than  accidental  death.  But  if  the  correction  exceedeth  the 
bounds  of  due  moderation,  either  in  the  measure  of  it  or  in  the 
instrument  made  use  of  for  that  purpose,  it  will  be  either  murder  or 
manslaughter  according  to  the  circumstances  of  the  case.^ 


REG  IN  A  V.   GRIFFIN. 

LiVEKPOOL  Assizes.     1869. 

[Reported  1 1  Cox  C.  C.  402.] 

The  prisoner,  David  Griffin,  was  indicted  for  the  manslaughter  of 
Ann  Griffin,  at  Liverpool,  on  the  7th  of  November,  1869. 

The  deceased,  who  was  the  daughter  of  the  prisoner,  was  two  j'ears 
and  six  months  old,  and  her  death  took  place  under  the  following 
circumstances. 

On  the  7th  of  November  the  prisoner's  wife  had  occasion  to  leave 
the  house,  the  deceased,  with  her  brother  and  sister,  being  at  that  time 
in  bed,  in  a  room  adjoining  that  in  which  the  prisoner  was  sitting. 
During  the  absence  of  his  wife,  the  prisoner  heard  the  deceased  crying, 
and  went  into  the  room  where  the  deceased  was,  and  took  her  out  of 
bed  into  another  room.  As  he  was  doing  this  she  committed  some 
childish  fault ;  this  made  the  prisoner  angry  ;  and,  after  having  placed 
her  in  the  other  room,  he  got  a  strap  one  inch  wide  and  eighteen 
inches  long  and,  having  turned  up  her  clothes,  gave  her  from  six  to 
twelve  severe  strokes  over  the  lower  part  of  the  back  and  right  thigh. 
Deceased  did  not  cry  much  at  the  time,  but  appeared  very  frightened  ; 
she  never  recovered  from  the  effects,  and  died  on  the  following 
Wednesda}',  November  10. 

Medical  evidence  was  given  to  the  effect  that  the  deceased  had  been 
a  healthy  child  and  well  nourished,  and  that  the  cause  of  death  was 
congestion,  accelerated  b}'  a  shock  to  the  nervous  system,  produced 
by  the  severe  beating  which  the  prisoner  had  given  it,  the  marks  of 
which  were  clearly  seen  at  the  jyost  mortem  examination  on  the  day 
following  her  death. 

Hawthorne,  for  the  prisoner,  contended  that  there  was  no  case  to 
go  to  the  jur}-,  for  the  prisoner  had,  as  a  father,  a  perfect  right  to  cor- 
rect his  child. 

T'idsioell,  for  the  prosecution,  contended  that,  although  a  father 
might  correct  his  child,  the  law  did  not  permit  him  to  use  a  weapon 


SECT.  II.]  CLEARY  V.   BOOTH.  613 

improper  for  the  purpose  of  correction.     He  cited  Reg.  v.  Hopley  (2 
F.  &  F.  201.) 

Martin,  B.  (after  having  consulted  with  Willes,  J.,  who  concurred 
in  his  opinion).  The  law  as  to  correction  has  reference  only  to  a 
child  capable  of  appreciating  correction,  and  not  to  an  infant  two 
years  and  a  half  old.  Although  a  slight  slap  may  be  lawfully  given  to 
an  infant  by  her  mother,  more  violent  treatment  of  an  infant  so  young 
by  her  father  would  not  be  justifiable  ;  and  the  only  question  for  the 
jury  to  decide  is,  whether  the  child's  death  was  accelerated  or  caused 

by  the  blows  inflicted  by  the  prisoner. 

Guilty. 


CLEARY  V.  BOOTH. 
High  Court  of  Justice,  Queen's  Bench  Division.     1893. 

[Reported  1893,  1  Q.  B.  465.] 

Lawrance,  J.  The  question  in  this  case  is  not  an  easy  one  ;  there 
is  no  authority,  and  it  is  a  case  of  first  impression.  The  question  for 
us  is  whether  the  head  master  of  a  board  school  is  justified  in  inflicting 
corporal  punishment  upon  one  of  his  scholars  for  an  act  done  outside 
the  limits  of  the  school,  and  the  appellant's  counsel  has  in  his  argument 
relied  on  what  might  happen  if  a  boy  were  not  punished  by  the  master 
for  such  acts.  The  facts  seem  to  be  that  a  boy  while  coming  to  the 
appellant's  school  was  assaulted  by  another  boy  belonging  to  the  same 
school  ;  that  complaint  was  made  to  the  appellant,  who  then  and  there 
punished  the  boy  who  had  committed  the  assault  and  also  the  respond- 
ent, who  was  in  his  company.  The  first  observation  that  occurs  to  one 
to  make  is  that  one  of  the  greatest  advantages  of  any  punishment  is 
that  it  should  follow  quickly  on  the  offence.  The  cases  cited  to  us 
show  that  the  schoolmaster  is  in  the  position  of  the  parent.  What 
is  to  become  of  a  boy  between  his  school  and  his  home?  Is  he  not 
under  the  authority  of  his  parent  or  of  the  schoolmaster?  It  cannot 
be  doubted  that  he  is ;  and  in  my  opinion  among  the  powers  delegated 
by  the  parent  to  the  schoolmaster,  such  a  power  as  was  exercised  by 
the  appellant  in  this  case  would  be  freely  delegated.  If  we  turn  to  the 
Code  we  find  that  there  are  several  things  for  which  a  grant  may  be 
given,  including  discipline  and  organization,  and  that  the  children  are 
to  be  brought  up  in  habits  of  good  manners  and  language,  and  of  con- 
sideration for  others.  Can  it  be  reasonably  argued  that  the  only  right 
of  a  schoolmaster  to  inflict  punishment  is  in  respect  of  acts  done  in  the 
school,  and  that  it  is  onl}-  while  ihe  boys  are  there  that  he  is  to  see 
that  they  are  well-mannered,  but  that  he  has  exceeded  all  the  authority 
delegated  to  him  by  the  parent  if  he  punishes  a  boy  who  within  a  yard 
of  the  school  is  guilty  of  gross  misbehavior?     It  is  diflQcult  to  express 


614  CLEARY  V.   BOOTH  [CHAP.  V. 

in_wordg  the  extent  of  the  schoolmaster's  authorit}-  in  respect  to  the 
punishment  of  his  pupils;  but  in  my  opinion  his  authority  extends,  not 
only  to  acts  done  in  school,  but  also  to  cases  where  a  complaint  of  acts, 
done  out  of  school,  at  any  rate  while  going  to  and  from  school,  is  made 
to  the  schoolmaster.  In  the  present  case  I  think  that  weight  may  prop- 
erly  be  placed  on  the  fact  that  the  act  for  which  the  boy  was  punished 
was  done  to  another  pupil  of  the  same  school.  I  think,  therefore,  that 
the  justices  were  wrong  in  convicting  the  appellant  as  they  did,  and 
that  the  case  must  be  sent  back  to  them  to  find  as  a  fact  whether  the 
punishment  was  excessive. 

Collins,  J.  I  am  of  the  same  opinion.  It  is  clear  law  that  a  father 
has  the  right  to  inflict  reasonable  personal  chastisement  on  his  son.  It 
is  equally  the  law,  and  it  is  in  accordance  with  very  ancient  practice, 
that  he  may  delegate  this  right  to  the  schoolmaster.  Such  a  right  has 
always  commended  itself  to  the  common  sense  of  mankind.  It  is  clear 
that  the  relation  of  master  and  pupil  carries  with  it  the  right  of  reason- 
able corporal  chastisement.  As  a  matter  of  common  sense,  how  far 
Is  this  power  delegated  by  the  parent  to  the  schoolmaster?  Is  it  lim- 
ited to  the  time  during  which  the  boy  is  within  the  four  walls  of  the 
school,  or  does  it  extend  in  any  sense  beyond  that  limit?  In  my  opin- 
ion the  purpose  with  which  the  parental  authority  is  delegated  to  the 
schoolmaster,  who  is  entrusted  with  the  bringing  up  and  discipline  of 
the  child,  must  to  some  extent  include  an  authority  over  the  child 
while  he  is  outside  of  the  four  walls.  It  ma}-  be  a  question  of  fact  in 
each  case  whether  the  conduct  of  the  master  in  inflicting  corporal  pun- 
ishment is  right.  Very  grave  consequences  would  result  if  it  were  held 
that  the  parent's  authorit}'  was  exclusive  up  to  the  door  of  the  school, 
and  that  then,  and  only  then,  the  master's  authorit}'  commenced;  it 
would  be  a  most  anomalous  result  to  hold  that  in  such  a  case  as  the 
present  the  boy  who  had  been  assaulted  had  no  remedy  by  complaint 
to  his  master,  who  could  punish  the  assailant  by  a  thrashing,  but  must 
go  before  the  magistrate  to  enforce  a  remedv  between  them  as  citizens. 
Not  only  would  such  a  position  be  unworkable  in  itself,  but  the  Code, 
which  has  the  force  of  an  Act  of  Parliament,  clearly  contemplates  that 
the  duties  of  the  master  to  his  pupils  are  not  limited  to  teaching.  A 
grant  may  be  made  for  discipline  and  organization,  and  it  is  clear  that 
he  is  entrusted  with  the  moral  training  and  conduct  of  his  pupils.  It 
cannot  be  that  such  a  duty  or  power  ceases  the  moment  that  tlie  pupil 
leaves  school  for  home;  there  is  not  much  opportunity  for  a  boy  to 
exhibit  his  moral  conduct  while  in  school  under  the  eye  of  the  master  : 
the  opportunity  is  while  he  is  at  play  or  outside  the  school ;  and  if  the 
schoolmaster  has  no  control  over  the  bo.ys  in  their  relation  to  each  other 
except  when  they  are  within  the  school  walls,  this  object  of  the  Code 
would  be  defeated.  In  such  a  case  as  the  present,  it  is  obvious  that 
the  desired  impression  is  best  brought  about  by  a  summary  and  imme- 
diate punishment.     In  my  opinion  parents  do  contemplate  such  an 


SECT.  II.]  FERTICH  V.    MICHENER.  615 

exercise  of  authority  by  the  schoolmaster.  I  should  be  sorry  if  I  felt 
myself  driven  to  come  to  the  opposite  conclusion,  and  am  glad  to  be 
able  to  say  that  the  principle  shows  that  the  authorit}'  delegated  to  the 
schoolmaster  is  not  limited  to  the  four  walls  of  the  school.  It  is  always 
a  question  of  fact  whether  the  act  done  was  outside  the  delegated 
authority;  but  in  the  present  case  I  am  satisfied,  on  tbe  facts,  that 
it  was  obviously  within  it.  The  question  of  excess  is  one  for  the 
magistrates. 


FERTICH  V.  MICHENER. 
Supreme  Court  of  Indiana,  1887. 

[Reported  111  Ind.  472.) 

NiBLACK,  J.  This  was  an  action  by  Nora  S.  Michener,  a  minor 
child,  acting  through  Louis  T.  Michener,  her  father  and  next  friend, 
against  William  H.  Fertich  for  alleged  injuries  received  while  attending 
a  public  school  of  which  Fertich  was  the  superintendent. 

The  complaint  was  in  three  paragraphs.  .  .  .  The  second  paragraph 
charged  the  defendant  with  having,  on  the  15th  day  of  January,  1885, 
wrongfully  and  unlawfully  restrained  the  plaintiff  of  her  liberty  for  a 
period  of  thirty  minutes.^ 

The  court  also  instructed  the  jury  to  the  effect  that  if  the  appellee 
was  at  any  time  detained  in  the  school-room  for  a  period  of  ten  or 
fifteen  minutes  after  her  class  was  dismissed,  as  a  penalty  for  having 
asked  leave  to  retire  and  having  retired  from  the  room  during  school 
hours,  such  detention  was  a  false  imprisonment,  and  that  a  teacher 
who  might  refuse  to  permit  a  pupil  to  retire  from  the  school-room, 
in  accordance  with  the  rule  set  out  in  the  third  paragraph  of  the  com- 
plaint, would  be  liable  for  whatever  damages  thereby  resulted  to  the 
pupil. 

In  our  view  of  the  principles  underlying  this  case,  that  instruction 
was  also  erroneous.  Such  a  detention  after  the  rest  of  the  class  was 
dismissed  may  have  been  unjust,  in  the  particular  instance,  as  well  as 
in  a  general  sense,  to  the  appellee,  and  it,  as  well  as  the  refusal  of  per- 
mission to  retire,  may  have  been  a  violation  of  the  spirit  of  the  rule 
referred  to;  but,  upon  the  hypothesis  stated  in  the  instruction,  the 
detention  did  not  amount  to  a  false  imprisonment,  and  the  refusal  of 
permission  to  retire  did  not  constitute  a  cause  of  action  against  the 
teacher. 

yhe  recognized  doctrine  now  is,  that  a  school  officer  is  not  personally 
liable  for  a  niere  mistake  of  judgment  in  the  government  of  his  school. 

1  Only  so  much  of  the  case  as  deals  with  this  paragraph  of  the  comphiint  is  here 
printed.  —  Ed. 


VU^ 


616 


HERITAGE    V.    DODGE. 


[chap.  V. 


To  make  him  so  liable  it  must  be  shown  that  he  acted  in  the  matter 
complained  of  wantonly,  wilfully,  or  maliciously.  Cooper  v.  McJunkin, 
4  Ind.  290;  Gardner  i'.  State,  4  Ind.  632;  Danenhoffer  v.  State,  79  Ind. 
75;  Elmore  r.  Overton,  104  Ind.  458  (54  Am.  R.  343);  Churchill  v. 
Fewkes,  13  Bradw.  520;  McCormick  v.  Burt,  95  111.  263  (35  Am.  R. 
163);  Harman  v.  Tappenden,  1  East,  555;  Dritt  v.  Snodgrass,  66  Mo. 
286  (27  Am.  R.  343). 

The  instruction  consequently  fell  short  of  telling  the  jury  all  that 
was  necessary  to  establish  a  liability  for  either  the  detention  or  the 
refusal  referred  to  by  it. 

The  detention  or  keeping  in  of  pupils  for  a  short  time  after  the  rest 
of  the  class  has  been  dismissed,  or  the  school  has  closed,  as  a  penalty 
for  some  misconduct,  shortcoming,  or  mere  omission,  has  been  very 
generally  adopted  by  the  schools,  especially  those  of  the  lower  grade, 
and  it  is  now  one  of  the  recognized  methods  of  enforcing  discipline  and 
promoting  the  progress  of  the  pupils  in  the  common  schools  of  the 
State.  It  is  a  mild  and  non-aggressive  method  of  imposing  a  penalty, 
and  inflicts  no  disgrace  upon  the  pupil.  The  additional  time  thus  spent 
in  studying  his  lessons  presumably  inures  to  the  benefit  of  the  pupil. 
However  mistaken  a  teacher  may  be  as  to  the  justice  or  propriety  of 
imposing  such  a  penalty  at  any  particular  time,  it  has  none  of  the  ele- 
ments of  false  imprisonment  about  it,  unless  imposed  from  wanton, 
wilful,  or  malicious  motives.  In  the  absence  of  such  motives,  such  a 
mistake  amounts  only  to  an  error  of  judgment  in  an  attempt  to  enforce 
discipline  in  the  school,  for  which,  as  has  been  stated,  an  action  will 
not  lie.  And  in  this  connection  it  is  perhaps  proper  to  say  that  there 
is  nothing  in  the  evndence,  as  we  construe  it,  tending  to  show  that  the 
appellee's  teacher  was  actuated  by  wantonness,  wilfulness,  or  malice  in 
any  of  the  alleged  wrongs  of  which  the  appellee  has  complained.  As 
there  was  a  failure  of  proof  as  against  the  teacher,  the  necessary  in- 
ference is  that  the  evidence  was  insufficient  to  establish  a  cause  of 
action  against  the  appellant.  As  to  what  constitutes  a  reasonable  rule 
for  the  government  of  a  school,  see  the  case  of  Burdick  v.  Babcock,  31 
Iowa,  562,  above  cited. 

The  judgment  is  reversed,  vnth  costs. 


HERITAGE  v.  DODGE. 
Supreme  Court  of  New  Hampshire,  1886. 

[Reported  64  N.  H.  297.] 

Trespass,  for  assault  and  battery.  Plea,  the  general  issue,  with  a 
brief  statement  that  the  defendant  was  teacher  of  a  public  school  in 
which  the  plaintiff  was  a  scholar,  and  that  the  assault  and  battery  com- 


SECT.  II.]  HERITAGE   V.   DODGE.  617 

plained  of  was  the  infliction  of  reasonable  punishment  of  the  plaintiff 
for  disrespectful  conduct  and  \nolation  of  the  regulations  of  the  school. 
The  evidence  tended  to  show  that  some  of  the  scholars  had  a  prac- 
tice of  coughing  and  making  noises  resembling  coughing  for  the  pur- 
pose of  attracting  attention,  which  disturbed  the  order  and  quiet  of 
the  school.  The  defendant  requested  that  the  noises  be  stopped,  but 
the  disturbance  continued  to  some  extent.  At  the  time  of  the  assault 
the  defendant  was  repeating  the  request  to  the  school,  when  the 
plaintiff  made  a  noise  resembling  a  cough,  which  the  defendant  under- 
stood was  intended  by  the  plaintiff  as  an  act  of  contempt  and  defiance 
of  the  teacher's  authority,  and  thereupon  the  defendant  inflicted  the 
punishment  complained  of. 

The  plaintiff  offered  evidence  tending  to  show  that  a  portion  of  the 
scholars,  including  the  plaintiff,  were  affected  with  a  cough  known  as 
chin-cough  or  whooping-cough,  and  the  plaintiff  testified  that  the 
coughing  for  which  he  was  punished  was  involuntary,  and  not  intended 
as  an  act  of  disobedience  or  of  defiance.  The  plaintiff  requested  the 
following  instruction:  "If  the  jury  find  that  the  plaintiff  could  not 
help  coughing  by  reason  of  a  chin-cough,  then  the  defendant  was  not 
justified  in  punishing  the  plaintiff,  although  the  defendant  believed 
that  the  plaintiff  coughed  for  the  purpose  of  defying  his  authority  and 
disobeying  the  rules  of  the  school."  The  court  declined  to  give  this 
instruction,  and  the  plaintiff  excepted. 

Upon  this  point  the  court  charged  the  jury  that  if  the  defendant, 
acting  honestly  and  with  reasonable  caution  and  prudence,  believed 
that  the  act  of  the  plaintiff  was  intended  as  an  act  of  disrespect  for 
and  contempt  of  the  teacher's  authority,  and  if  he  had  reasonable 
cause  for  believing  that  the  noise  made  by  the  plaintiff  was  inten- 
tional and  for  the  purpose  of  showing  his  defiance  of  the  reasonable 
requirements  of  the  defendant  in  the  government  of  the  school,  then 
the  defendant  was  justified  in  inflicting  moderate  and  reasonable 
punishment  upon  the  plaintiff. 

The  plaintiff  excepted  to  the  foregoing  instructions.  Verdict  for 
the  defendant. 

Smith,  J.  The  instructions  requested  made  the  defendant  liable, 
without  regard  to  the  fact  whether  he  exercised  reasonable  judgment 
and  discretion  in  determining  whether  the  plaintiff  was  guilty  of  in- 
tentional misconduct  as  a  scholar.  The  law  clothes  the  teacher,  as  it 
does  the  parent  in  whose  place  he  stands,  with  power  to  enforce  dis- 
cipline by  the  imposition  of  reasonable  corporal  punishment.  1  Blk. 
Com.  453;  2  Kent  Com.  205;  Reeve  Dom.  Rel.  2SS,  289,  375.  He  is 
not  required  to  be  infallible  in  his  judgment.  He  is  the  judge  to  de- 
termine when  and  to  what  extent  correction  is  necessary;  and  like  all 
others  clothed  with  a  discretion,  he  cannot  be  made  personally  respon- 
sible for  error  in  judgment  when  he  has  acted  in  good  faith  and  without 
malice.     Cooley  Const.  Lim.  341;  Cooley  Torts,  171,  172,  288;  Lander 


618  COMMONWEALTH   V.    MCAFEE.  [CHAP.  V. 

■0.  Seaver,  32  Vt.  114;  State  v.  Pendergrass,  2  Dev.  &  Bat.  365;  Fitz- 
gerald V.  Northeote,  4  F.  &  F.  565;  Reeve  Dom.  Rel.  288. 

The  instructions  were  correct,  and  there  was  no  error  in  the  refusal 
to  give  those  requested.^ 

Exceptions  overruled. 

Clark,  J.,  did  not  sit:  the  others  concurred. 


COMMONWEALTH  v.  McAFEE. 

Supreme  Judicial  Court  of  Massachusetts.     1871. 

[Reported  108  Mass.  458.] 

Indictment  of  Hugh  McAfee,  charging  him  with  the  manslaughter 
of  Margaret  McAfee,  his  wife,  in  that  he,  "the  said  Margaret  did 
feloniously  and  wilfully  strike,  kick,  beat,  bruise,  and  wound,  in  and 
upon  the  head  and  body  of  her,  the  said  Margaret,  and  her,  the  said 
Margaret,  did  throw  upon  the  floor,  thereby  by  the  said  striking,  kick- 
ing, beating,  wounding,  and  throwing  upon  the  floor,  then  and  there 
giving  to  the  said  Margaret  divers  and  many  mortal  strokes,"  etc.,  of 
which  said  mortal  strokes,  etc.,  the  said  Margaret  then  and  there  died. 

It  appeared  at  the  trial  that  the  defendant's  wife  was  drunk ;  that  he 
struck  her  with  his  open  hand,  one  blow  on  the  cheek  and  one  upon  the 
temple  ;  and  that  she  fell  upon  the  floor  and  did  not  speak  afterward. 
Medical  witnesses  testified,  ''  that  she  had,  by  falling  on  a  chair  most 
probably,  or  by  some  other  external  force,  been  afl!'ected  by  concussion 
of  the  brain  and  effusion  of  blood  on  the  brain,  and  that  thus  her  death 
was  occasioned." 

The  defendant  requested  the  judge  to  instruct  the  jury  that  the  hus- 
band had  a  legal  right  to  administer  due  and  proper  correction  and 
corporal  chastisement  on  his  wife.- 

The  judge  refused  so  to  instruct  the  jurj-,  and  gave  them  the  follow- 
ing instructions :  "  Upon  any  view  of  the  facts  in  this  case,  which  the 
testimon}-,  taken  most  strongly  for  the  defendant,  will  allow,  there  was, 
as  matter  of  law,  no  justification  for  the  blows  given  by  the  defendant 
to  the  deceased.  If  the  unlawful  blows  of  the  defendant  caused  death, 
either  directly,  or  by  causing  the  deceased  to  fall  upon  the  floor  by  the 
force  and  effect  thereof,  and  so  death  thereby  ensued,  then  the  defend- 
ant is  guilty  of  manslaughter."  The  jury  returned  a  verdict  of  guilty, 
and  the  defendant  alleged  exceptions. 

Chapman,  C.  J.  .  .  .  Tlie  boating  of  the  defendant's  wife  was  un- 
lawful.    In  Peannun  r.  Pearman.  1  8vvul).  &  Tiistr.  601,  it  is  said  that 

iSee  also  Boyd  v.  State,  88  Ala.  169;  Donnelley  x.  Terr  (Ari.),  52  Pac.  368; 
Sheehan  r>.  Sturges,  53  Conn.  481;  Hinkle  t.  State,  127  Ind.  490,  26  N.  E.  777; 
State  V.  Mizner,  45  la.  248;  State  v.  Long,  117  N.  C.  791,  23  S.  E.  431.  —  Ed. 

-  Only  so  much  of  the  case  as  discusses  this  request  is  given.  —  Ed. 


SECT.  11.]  THE   QUEEN   V.    JACKSON.  619 

there  is  no  law  authorizing  a  man  to  beat  his  drunken  wife.  Beating  a 
wife  is  held  to  be  unlawful  in  New  York.  People  v.  "Winters,  2 
Parker's  Crim.  Cas.  10;  Perry  v.  Perry,  2  Paige,  501,  503.  There  is 
no  authorit}'  in  its  favor  in  this  commonwealth.  Beating  or  striking  a 
wife  violently  with  the  open  hand  is  not  one  of  the  rights  conferred  on 
a  husband  bj'  the  marriage,  even  if  the  wife  be  drunk  or  insolent. 
The  blows  being  illegal,  the  defendant  was  at  least  guilty  of  man- 
slaughter.    Commonwealth  v.  Fox,  7  Gray,  585. 

Exceptions  overruled. 


THE  QUEEN  v.  JACKSON. 
Court  of  Appeal,  1891. 

[Reported  (1891)  1  Q.  B.  671.] 

Argument  on  the  return  to  a  writ  of  habeas  corpus,  commanding 
Edmund  Haughton  Jackson  to  bring  up  the  body  of  Emily  Emma 
Maude  Jackson,  his  wife,  taken  and  detained  in  his  custody. 

Lord  Esher,  M.  R.^  In  this  case  it  is  really  admitted  that  this  lady 
is  confined  by  the  husband  physically  so  as  to  take  away  her  liberty. 
The  only  question  for  us  to  determine  is  whether  in  this  case  we  can 
allow  that  to  continue.  The  husband  declares  his  intention  to  continue 
it.  He  justifies  such  detention;  and  the  proposition  laid  down  on  his 
behalf  is  that  a  husband  has  a  right  to  take  the  person  of  his  wife  by 
force  and  keep  her  in  confinement,  in  order  to  prevent  her  from  ab- 
senting herself  from  him  so  as  to  deprive  him  of  her  society.  A  series 
of  propositions  have  been  quoted  which,  if  true,  make  an  English  wife 
the  slave,  the  abject  slave,  of  her  husband.  One  proposition  that  has 
been  referred  to  is  that  a  husband  has  a  right  to  beat  his  wife.  I  do 
not  believe  this  ever  was  the  law.  Then  it  was  said  that,  if  the  wife  was 
extravagant,  the  husband  might  confine  her,  though  he  could  not  im- 
prison her.  The  confinement  there  spoken  of  was  clearly  the  depriva- 
tion of  her  liberty  to  go  where  she  pleases.  The  counsel  for  the  husband 
was  obliged  to  admit  that,  if  she  was  kept  to  one  room,  that  would  be 
imprisonment;  but  he  argued  that,  if  she  was  only  kept  in  the  house, 
that  was  confinement  only.  That  is  a  refinement  too  great  for  my 
intellect.  I  should  say  that  confining  a  person  to  one  house  was  im- 
prisonment, just  as  much  as  confining  such  person  to  one  room.  I  do 
not  believe  that  this  contention  is  the  law  or  ever  was.  It  was  said 
that  by  the  law  of  England  the  husband  has  the  custody  of  his  wife. 
What  must  be  meant  by  "custody"  in  that  proposition  so  used  to  us? 
It  must  mean  the  same  sort  of  custody  as  a  gaoler  has  of  a  prisoner.    I 

1  The  return  to  the  writs  and  the  concurring  opinions  of  Lord  Halsburt,  L.  C, 
and  Fry,  L.  J.,  are  omitted.  —  Ed. 


620  THE    QUEEN    V.  JACKSON.  [CHAP.  V. 

I 

protest  that  there  is  no  such  law  in  England.  Cochrane's  Case,  8  Dowl. 
630,  was  cited  as  deciding  that  the  husband  has  a  right  to  the  custody, 
such  custody,  of  his  wife.  I  have  read  it  carefully,  and  I  think  that  it 
does  so  decide.  The  judgment,  if  I  may  respectfully  say  so,  is  not  very 
exactly  worded,  and  uses  different  expressions  in  many  places  where  it 
means  the  same  thing;  but  that  seems  to  me  to  be  the  result  of  it.  It 
appears  to  me,  if  I  am  right  in  attributing  to  it  the  meaning  I  have  men- 
tioned, that  the  decision  in  that  case  was  wrong  as  to  the  law  enunciated 
in  it,  and  that  it  ought  to  be  overruled.  Sitting  here,  in  the  Court  of 
Appeal,  we  are  entitled  to  overrule  it.  I  do  not  believe  that  an  English 
husband  has  by  law  any  such  rights  over  his  wife's  person,  as  have 
been  suggested.  I  do  not  say  that  there  may  not  be  occasions  on  which 
he  would  have  a  right  of  restraint,  though  not  of  imprisonment.  For 
instance,  if  a  wife  were  about  immediately  to  do  something  which  would 
be  to  the  dishonour  of  her  husband,  as  if  the  husband  saw  his  wife  in 
the  act  of  going  to  meet  a  paramour,  I  think  that  he  might  seize  her 
and  pull  her  back.  That  is  not  the  right  that  is  contended  for  in  this 
case.  The  right  really  now  contended  for  is  that  he  may  imprison  his 
wife  by  way  of  punishment,  or  if  he  thinks  that  she  is  going  to  absent 
herself  from  him,  for  any  purpose,  however  innocent  of  moral  offense, 
he  may  imprison  her,  and  it  must  go  the  full  length  that  he  may  per- 
petually imprison  her.  I  do  not  think  that  this  is  the  law  of  England. 
But,  assuming  that  there  is  such  a  right,  the  question  arises  whether 
the  way  in  which  and  the  circumstances  under  which  it  has  been  exer- 
cised in  this  case  are  such  that  the  law  ought  to  give  back  to  the  hus- 
band the  custody  of  this  lady  against  her  will.  The  seizure  was  made 
on  a  Sunday  afternoon  when  she  was  coming  out  of  church,  in  the  face 
of  the  whole  congregation.  He  takes  with  him  to  assist  him  in  making 
the  seizure  a  young  lawyer's  clerk  and  another  man.  The  wife  is  taken 
by  the  shoulders  and  dragged  into  a  carriage,  and  falls  on  the  floor  of 
the  carriage  with  her  legs  hanging  out  of  the  door.  These  have  to  be 
lifted  in  by,  I  believe,  the  clerk.  Her  arm  is  bruised  in  the  struggle. 
She  is  then  driven  off  to  the  husband's  house,  the  lawyer's  clerk  riding 
in  the  carriage  with  them.  Could  anything  be  more  insulting?  The 
lawyer's  clerk  remains  at  the  house,  and  a  nurse  is  engaged  to  attend 
to  the  wife,  who  is  not  ill.  Obviously  the  lawyer's  clerk  and  the  nurse 
are  to  help  to  keep  watch  over  her  and  control  her.  That  in  itself  is 
insulting.  She  goes  to  a  window  in  the  house,  and,  one  of  her  relations 
being  outside,  the  blind  is  immediately  pulled  down.  I  think  that  the 
circumstances  of  this  seizure  and  detention  were  those  of  extreme  in- 
sult, and  I  cannot  think  that  it  can  be  that  under  such  circumstances 
as  these  the  husband  has  a  right  to  keep  his  wife  insultingly  imprisoned 
till  she  undertakes  to  consort  with  him.  In  my  opinion,  the  circum- 
stances are  such  that  the  court  ought  not  to  give  her  back  into  his 
custody.  He  has  obtained,  it  is  true,  a  decree  for  restitution  of  con- 
jugal rights;  but  that  gives  him  no  power  to  take  the  law  into  his  own. 


SECT.  II.]  TINKLE   V.   DUNIVANT.  621 

hands  and  himself  enforce  the  decree  of  the  court  by  imprisonment. 
Formerly  that  decree  might  have  been  enforced  by  attachment  for 
contempt;  but  that  would  have  been  an  imprisonment  by  the  court, 
not  by  the  husband.  The  power  of  attachment  in  such  cases  is  now 
taken  away.  The  suggestion,  therefore,  must  be  that,  though  the  court 
has  no  power  to  force  the  wife  to  restore  conjugal  rights  by  imprison- 
ment, the  husband  himself  has  a  right  to  take  her  by  force  and  imprison 
her  without  the  assistance  of  the  court.  I  think  that  the  passing  of 
the  Act  of  Parliament  which  took  away  the  power  of  attachment  in 
such  cases  is  the  strongest  possible  e\'idence  to  show  that  the  legislature 
had  no  idea  that  a  power  would  remain  in  the  husband  to  imprison 
the  wife  for  himself;  and  this  tends  to  show  that  it  is  not  and  never  was 
the  law  of  England  that  the  husband  has  such  a  right  of  seizing  and 
imprisoning  the  wife  as  contended  for  in  this  case.  If  there  is  now  a 
greater  difficulty  than  there  was  in  enforcing,  or  if  it  is  now  impossible 
effectively  to  enforce  a  decree  for  the  restitution  of  conjugal  rights,  the 
legislature  has  caused  this  by  Act  of  Parliament,  and  the  legislature 
must  deal  with  the  matter.  For  these  reasons  I  agree  that  the  return 
to  the  writ  is  bad,  and  that  the  husband  has  so  acted  that  we  ought 
not  to  give  back  the  custody  of  this  lady  to  him. 

Return  held  had,  and  wife  to  go  free. 


TINKLE  V.   DUNIVANT. 
Supreme  Court  of  Tennessee,  1886. 

[Reported  16   Lea,  503.] 

Freeman,  J.  This  is  a  suit  for  recovery  of  damages  for  an  alleged 
assault  and  battery  by  Tinkle  on  the  plaintiff.  The  jury  found  a 
verdict  in  favor  of  plaintiff  and  assessed  her  damages  at  $500,  from  the 
judgment  on  which  there  is  an  appeal  in  error  to  this  court. 

Several  errors  are  assigned,  which  we  proceed  to  dispose  of.  First, 
it  is  said,  the  damages  are  excessive.  While  they  are  probably  large 
for  the  actual  amount  of  injury,  we  cannot  say  they  are  so  large  as  to 
evidence  passion  or  prejudice  on  the  part  of  the  jury.  The  proof  on 
the  part  of  the  plaintiff,  which  is  evidently  credited  by  the  jury,  is 
substantially,  that  plaintiff,  a  girl  of  about  eighteen  years  of  age,  lived 
in  defendant's  house  as  a  "house  servant  of  all  work,"  kept  probably 
to  assist  Mrs.  Tinkle  in  her  general  household  duties.  It  seems  there 
was  an  infant  child  of  a  few  months  old  in  the  family  which  required  to 
be  fed  by  means  of  milk  drawn  from  a  bottle,  the  mother  not  being  able 
to  give  it  nourishment  from  the  breast.  The  child  seems  to  have  been 
fretful  and  required  the  bottle  of  milk  during  the  night  of  the  trouble, 
when  Tinkle  went  into  the  room  adjoining  the  family  room  and  called 
plaintiff  to  get  up  and  come  into  the  other  room.  It  is  probable  she 
failed  to  do  so,  as  he  says,  after  being  called  more  than  once;  she  claims 


622 


THE    king's    prerogative   IN    SALTPETRE.  [CHAP.  V. 


that  she  had  not  heard  the  calls.  The  child  continuing  to  cry,  defend- 
ant took  an  oil  lamp  in  his  left  hand,  went  into  the  room  where  plain- 
tiff was  in  bed  with  a  niece  of  his,  and  seized  her  Vjy  the  arm,  pulled  her 
from  the  bed  on  the  floor,  and  as  he  admits,  "  tapped  "  her  on  her  side 
with  his  foot.  She  insists  he  kicked  her  with  considerable  severity, 
and  the  weight  of  the  cAddence  tends  to  support  her  \'iew  of  the  facts. 
It  is  shown  that  the  act  was  of  such  a  character  that  the  niece  of  de- 
fendant raised  up  in  the  bed  and  said  to  him  to  stop.  The  plaintiff 
says  she  was  hurt  in  her  side  and  had  felt  pain  as  the  result  at  times  up 
to  the  trial.  She  was  also  somewhat  bruised  on  her  arm  by  the  pres- 
sure of  the  hand  in  pulling  her  out  of  bed;  she  was  in  her  night  dress, 
and  her  gown  is  shown  to  have  been  torn.  While  there  has  been  no 
serious  permanent  damage,  we  cannot  say  the  jury  erred  in  believing 
the  plaintiff's  theory  of  the  case,  and  so  beheving,  the  damage  cannot 
be  held,  as  we  have  said,  to  be  so  excessive  as  to  require  us  to  reverse 
for  this  cause.  .  .  .  His  Honor  was  requested  to  charge  the  jury, 
"  that  if  plaintiff  was  a  minor  under  the  age  of  twenty-one  years,  and 
was  in  the  employ  of  defendant  as  a  servant,  he  would  have  the  right 
to  require  her  to  obey  his  reasonable  commands,  and  in  case  of  disobe- 
dience, to  use  moderate  force  to  compel  her  to  do  so."  To  this  he  re- 
plied, "  this  request  is  the  law,  but  defendant  would  not  have  the  right 
to  pull  her  out  of  bed  and  kick  her."  In  this  he  erred  against  the  plain- 
tiff, so  far  as  the  first  part  of  the  proposition  goes.  A  master  has  no 
right  to  enforce  his  commands  upon  his  servant  or  employee  by  the 
use  of  force  or  personal  chastisement.  We  so  held  in  the  case  of  Cooper 
v.  The  State,  8  Bax.  325.  "A  master  has  the  right  to  use  moderate 
corporeal  correction  in  case  of  an  offending  apprentice."  Commond  v. 
Baird,  1  Ask.  Pa.  Rep.  267.  But  this  right  is  denied  as  respects  or- 
dinary hired  servants.  2  Kent's  Com.  261.  The  only  ci^^l  remedies  a 
m.aster  has  for  idleness,  disobedience,  or  other  dereliction  of  duty,  or 
breach  of  contract  on  the  part  of  a  servant,  are  either  to  bring  an  action 
against  him  or  discharge  him  from  service.  Wait's  Act.  and  Def.,  vol. 
4,  page  600,  and  authorities  cited. ^ 


THE  KING'S  PREROGATIVE   IN  SALTPETRE. 
All  the  Judges  of  England. 

Reported  12  Co.  12. 

All  the  Justices,  viz.,  Popham,  Chief  Justice  of  England,  Coke, 
Chief  Justice  of  the  Common  Pleas,  Fleming,  Chief  Baron,  Fenner, 
Searl,  Yelverton,  Williams,  and  Tanfield,  JJ.,  were  assembled  at  Ser- 
jeants-Inn, to  consult  what  prerogative  the  King  had  in  digging  and 
taking  of  saltpetre  to  make  gunpowder  by  the  law  of  the  realm;  and, 
upon  conference  between  them,  these  points  were  resolved  by  them, 
all,  una  voce. 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  II.]  THE    king's   PREROGATIVE    IN    SALTPETRE,  623 

That  although  the  invention  of  gunpowder  was  devised  within  time 
of  memory,  viz.,  in  the  time  of  R.  2.,  yet  inasmuch  as  this  concerns  the 
necessary  defense  of  the  realm,  he  shall  not  be  driven  to  buy  it  in 
foreign  parts;  and  foreign  princes  may  restrain  it  at  their  pleasure, 
in  their  own  dominions:  and  so  the  realm  shall  not  have  sufficient  for 
the  defense  of  it,  to  the  peril  and  hazard  of  it :  and  therefore  insomuch 
as  saltpetre  is  within  the  realm,  the  King  may  take  it  according  to  the 
limitations  following  for  the  necessary  defense  of  the  kingdom. 

Although  the  King  cannot  take  the  trees  of  the  subject  growing  upon 
his  freehold  and  inheritance,  as  it  was  now  lately  resolved  by  us  the 
Justices  of  England:  and  although  he  cannot  take  gravel  in  the  in- 
heritance of  the  subject,  for  reparation  of  his  houses,  as  the  book  is 
in  11  H.  4.  28;  yet  it  was  resolved,  that  he  may  dig  for  saltpetre,  for 
this  that  the  ministers  of  the  King  who  dig  for  saltpetre  are  bound  to 
leave  the  inheritance  of  the  subject  in  so  good  plight  as  they  found  it, 
which  they  cannot  do  if  they  might  cut  the  timber  growing,  which 
would  tend  to  the  disinheritance  of  the  subject,  which  the  King  by 
prerogative  cannot  do ;  for  the  King  (as  it  is  said  in  our  books)  cannot 
do  any  wrong. 

And  as  to  the  case  of  gravel,  for  reparation  of  the  houses  of  the 
King,  it  is  not  to  be  compared  to  this  case;  for  the  case  of  saltpetre 
extends  to  the  defense  of  the  whole  realm,  in  which  every  subject 
hath  benefit;  but  so  it  is  not  in  the  case  of  the  reparation  of  the  King's 
houses:  and  therefore  it  is  agreed  in  13  H.  4.  and  other  books,  that  the 
King  may  charge  the  subject  for  murage  of  a  town,  to  which  the 
subjects  were  charged  in  the  time  of  insurrection  or  war,  for  safety: 
and  so  for  pontage,  for  this  that  he  which  is  charged  hath  benefit 
by  it.  But  the  King  cannot  charge  the  subject  for  the  making  of  a 
wall  about  his  own  house,  or  for  to  make  a  bridge  to  come  to  his  house; 
for  that  doth  not  extend  to  pubHc  benefit:  but  when  enemies  come 
against  the  realm  to  the  sea-coast,  it  is  lawful  to  come  upon  my  land 
adjoining  to  the  same  coast,  to  make  trenches  or  bulwarks  for  the 
defense  of  the  realm,  for  every  subject  hath  benefit  by  it.  And  there- 
fore by  the  common  law,  every  man  may  come  upon  my  land  for 
the  defense  of  the  realm,  as  appears  9  Ed.  4.  23.  And  in  such  case  on 
such  extremity  they  may  dig  for  gravel,  for  the  making  of  bulwarks; 
for  this  is  for  the  public,  and  every  one  hath  benefit  by  it;  but  after 
the  danger  is  over,  the  trenches  and  bulwarks  ought  to  be  removed, 
so  that  the  owner  shall  not  have  prejudice  in  his  inlieritance :  and  for 
the  commonwealth,  a  man  shall  suffer  damage;  as,  for  sa\ang  of  a  city 
or  town,  a  house  shall  be  plucked  down  if  the  next  be  on  fire:  and  the 
suburbs  of  a  city  in  time  of  war  for  the  common  safety  shall  be  plucked 
down;  and  a  thing  for  the  commonwealth  every  man  may  do  without 
being  liable  to  an  action,  as  it  is  said  in  3  H.  8  fol.  15.  And  in  this  case 
the  rule  is  true,  Princeps  et  respublica  ex  jvMa  causa  possunt  rem  meam 
avferre.^ 

1  See  also  Y.  B.  9  Ed.  4,  23,  pi.  41,  Ames  Cas.  Torts  (3d  ed.)  177.  — Ed. 


624  STATE   V,    WRAY.  [CHAP.  V. 


STATE   V.  WRAY. 
Supreme  Court  of  North  Carolina.    1875. 

[Reported  72  Xorth  Carolina,  253.] 

Settle,  J.  The  defendants  being  indicted  for  retailing  spirituous 
liquors  without  a  license  so  to  do,  the  jury  rendered  the  following 
special  verdict:  "The  defendants  were  druggists  and  partners  in  the 
town  of  Shelby,  and  kept  medicines  for  sale,  but  had  no  license  to 
retail  spirituous  liquors.  In  the  month  of  July,  1872,  Dr.  O.  P.  Gardner, 
a  practising  physician  in  the  town  of  Shelby,  prescribed  the  use  of  a 
half-pint  of  French  brandy  for  Mrs.  Durham,  the  wife  of  the  witness. 
Hill  Durham,  and  directed  the  witness  to  go  to  the  defendants  for  it. 
That  Dr.  Gardner  also  went  to  the  defendants  and  directed  them  to 
let  the  witness  have  the  said  brandy  for  his  wife  as  medicine.  The 
witness  then  went  to  the  defendants  and  purchased  the  half-pint  of 
French  brandy,  and  his  wife  used  it  as  medicine.  (That  French  brandy 
is  a  spirituous  liquor  jl^that  it  is  also  an  essential  medicine,  frequently 
prescribed  by  physicians,  and  often  used,  and  that  in  this  case  it  was 
bought  in  good  faith  as  a  medicine,  and  was  used  as  such."^, 

The  letter  of  the  law  has  been  broken,  but  has  the  spirit  of  the  law 
been  violated?  The  question  here  presented  has  been  much  discussed, 
but  it  has  not  received  the  same  judicial  determination  in  all  the  States 
in  which  it  has  arisen.  In  this  conflict  of  authority  we  shall  remember 
that  the  reason  of  the  law  is  the  life  of  the  law,  and  when  one  stops 
the  other  should  also  stop. 

What  was  the  evil  sought  to  be  remedied  by  our  statute  ?  Evidently 
the  abusive  use  of  spirituous  liquors,  keeping  in  view  at  the  same  time 
the  revenues  of  the  State.  The  special  verdict  is  very  minute  in  its 
details,  and  makes  as  strong  a  case  for  the  defendants  as  perhaps  will 
ever  find  its  way  into  court  again.  A  physician  prescribes  the  brandy 
as  a  medicine  for  a  sick  lady,  and  directs  her  husband  to  get  it  from 
the  defendants,  who  are  druggists.  It  may  be  that  a  pure  article  of 
brandy,  such  as  the  physician  was  willing  to  administer  as  a  medicine, 
was  not  to  be  obtained  elsewhere  than  at  the  defendants'  drugstore. 
The  doctor  himself  goes  to  the  defendants  and  directs  them  to  let  the 
witness  have  the  brandy  as  a  medicine  for  his  wife.  And  the  further 
fact  is  found,  which  perhaps  might  have  been  assumed  without  the  find- 
ing, that  French  brandy  is  an  essential  medicine,  frequently  prescribed 
by  physicians  and  often  used  ;  and  the  farther  and  very  important  fact 
is  established,  that  in  this  case  it  was  bought  in  good  faith  as  a  medi- 
cine, and  was  used  as  such.  After  this  verdict  we  cannot  doubt  that 
the  defendants  acted  in  good  faith  and  with  due  caution,  in  the  sale 
which  is  alleged  to  be  a  violation  of  law. 

In  favor  of  defendants,  criminal  statutes  are  both  contracted  and 


I 


SECT.  II.]  PEOPLE   V.    TAYLOR.  625 

expanded.  1  Bishop,  par.  261.  Now  unless  this  sale  comes  within 
the  mischief  which  the  statute  was  intended  to  suppress,  the  defend- 
ants are  not  guilty  ;  for  it  is  a  principle  of  the  common  law  that  no 
one  shall  suffer  criminally  for  an  act  in  which  his  mind  does  not  con- 
cur. The  familiar  instance  given  by  Blackstone  illustrates  our  case 
better  than  I  can  do  by  argument.  The  Bolognian  law  enacted  "that 
whosoever  drew  blood  in  the  street,  should  be  punished  with  the  utmost 
severity."  A  person  fell  down  in  the  street  with  a  fit,  and  a  surgeon 
opened  a  vein  and  drew  blood  in  the  street.  Here  was  a  clear  viola- 
tion of  the  letter  of  the  law,  and  yet  from  that  day  to  this,  it  has  never 
been  considered  a  violation  of  the  spirit  of  the  law.  Perhaps  it  will 
give  us  a  clearer  view  of  the  case  if  we  put  the  druggist  out  of  the 
question,  and  suppose  that  the  physician  himself,  in  the  exercise  of 
his  professional  skill  and  judgment,  had  furnished  the  liquor  in  good 
faith  as  a  medicine.  Can  it  be  pretended  that  he  would  be  any  more 
guilty  of  a  violation  of  our  statute,  than  the  surgeon  was  guilty  of  a 
violation  of  the  Bolognian  law  ?    We  think  not. 

But  we  would  not  have  it  understood  that  physicians  and  druggists 
are  to  be  protected  in  an  abuse  of  the  privilege.  I  They  are  not  only 
prohibited  from  selling  liquor  in  the  ordinary  course  of  business,  but 
also  from  administering  it  as  a  medicine  unless  it  be  done  in  good 
faith,  and  after  the  exercise  of  due  caution  as  to  its  necessity  as  a 
jnedicine.  The  sale  of  liquor  without  a  license,  in  quantities  less  than 
a  quart,  is  j)rima  facie  unlawful,  and  it  is  incumbent  upon  one  who 
does  so  sell  to  show  that  it  was  done  under  circumstances  which  ren- 
der it  lawful.  In  this  case  we  think  such  circumstances  have  been 
shown,  and  we  concur  in  the  judgment  of  his  honor,  that  the  defend- 
ants are  not  guilty. 

Per  Curiam.  Judgment  affirmed. 


PEOPLE  V.   TAYLOR. 
Supreme  Court  of  Michigan,  1896. 

[Reported  110  Mich.  491.] 

Montgomery,  J.  The  respondent  was  convicted  of  keeping  a  saloon 
open  on  Sunday.^  .  .  .  The  defendant  offered  testimony  that  on  the 
Sunday  in  question  he  and  his  father-in-law  were  walking  along  the 
street,  and  came  to  nearly  in  front  of  his  saloon,  when  they  met  four 
men;  that  defendant's  father-in-law  was  taken  suddenly  ill,  and  it 
was  suggested  that  he  be  taken  home  in  a  carriage,  but  he  replied  that 
he  must  have  a  doctor  right  away;  that  defendant  then  opened  his 
saloon,  admitted  his  father-in-law  and  the  four  other  men,  and  tele- 

'  Part  of  the  opinion  only  is  given.  —  Ed. 


626  GLEVER  V.    HYNDE.  [CHAP.  V. 

phoned  for  a  doctor.  The  defendant's  own  testimony  shows  that  he 
was  unable  to  state  whether  there  were  other  persons  admitted  into 
the  saloon.  .  .  . 

We  think  this  testimony  fails  to  show  any  overruling  necessity  for 
•opening  up  the  saloon  and  admitting  people  indiscriminately.  If  it 
was  necessary  to  take  his  father  to  a  place  for  treatment,  there  was  a 
drug  store  within  a  few  feet  of  the  place,  lawfully  open.  Or,  even  if 
it  might  be  said  that  it  was  proper  to  open  the  saloon  for  this  purpose, 
it  was  not  necessary  to  let  in  a  battalion  of  customers  at  the  same  time. 
The  facts  were  not  disputed  except  as  to  the  number  of  people  admitted. 
No  error  was  committed  to  the  prejudice  of  respondent,  and  the  con- 
viction will  be  affirmed. 


GLEVER  V.  HYNDE. 
Common  Bench,  1674. 

[Reported  1  Mod.  168.] 

Glever  brought  an  action  of  trespass,  of  assault  and  battery, 
against  Elizabeth  Hynde  and  six  others,  For  that  they  at  York-Castle, 
in  the  county  of  York,  him,  the  said  plaintiff,  with  force  and  arms  did 
assault,  beat,  and  evil-entreat,  to  his  damage  of  one  hundred  pounds. 

The  defendants  plead  to  the  vi  et  armis,  not  guilty;  to  the  assault, 
beating,  and  evil-entreating,  they  say,  that  at  such  a  place,  in  the  county 
of  Lancaster,  one  Jackson,  a  curate,  was  performing  the  rites  and 
funeral  obsequies,  according  to  the  usage  of  the  church  of  England,  over 

the  body  of ,  there  lying  dead,  and  ready  to  be  buried;  and  that  then 

and  there  the  plaintiff  did  maliciously  disturb  him;  that  they,  the 
defendants,  required  him  to  desist;  and  because  he  would  not,  that  they 
to  remdv^e  him,  and  for  the  preventing  of  further  disturbance,  vwUiter 
ei  manus  imposuerunt,  &c.  quoc  est  eadem  transgressio;  absque  hoc  that 
they  were  guilty  of  any  assault,  etc.  within  the  county  of  York,  or 
any  where  else  extra  comitatum  Lancastrice.  —  The  plaintiff  demurs. 

The  Court.  The  statute  of  \.  Philip  &  Mary  concerns  preachers 
only:  but  there  is  another  act,  made  L  Eliz.  c.  2.  s.  9.  that  extends  to 
all  men  in  orders  that  perform  any  part  of  the  public  service.  But 
neither  of  these  statutes  take  away  the  common  law.  And  at  the  com- 
mon law,  any  person  there  present  might  have  ^  removed  the  plaintiff; 
for  they  were  all  concerned  in  the  ser\nce  of  God  that  was  then  perform- 
ing; so  that  the  plaintiff  in  disturbing  it,  was  a  nuisance  to  them  all; 
and  might  be  removed  by  the  same  rule  of  law  that  allows  a  man  to 
abate  a  nuisance. — Whereupon  judgment  was  given  for  the  defendant, 
nisi  causa,  &c} 

1  See  6.  Edw.  6,  c.  4.  the  1.  Mary,  c.  .3.  and  the  1.  Will.  &  Mary,  c.  18.  s.  19. 

2  See  also  Cooper  v.  McKenna.  124  Mass.  284.  —  Ed. 


SECT.  II.]  PUTNAM  V.   PAYNE.  627 

PUTNAM  V.  PAYNE. 

Supreme  Court,  New  York,  1816. 

[Reported  13  Johns.  312.] 

In  error,  on  certiorari  to  a  justice's  court. 

The  defendant  in  error  brought  an  action,  in  the  court  below,  against 
the  plaintiff  in  error,  for  killing  his  dog.  It  was  proved,  at  the  trial, 
that  the  dog  was  very  vicious,  and  frequently  attacked  persons  pass- 
ing in  the  street,  in  Lansingburgh,  where  the  parties  resided.  The 
plaintiff  below  had  frequently  been  notified  of  the  ferocious  acts  of  his 
dog,  and  had  been  requested  by  the  neighbors  to  kill  or  confine  him. 
The  dog  in  question  had  been  bitten,  a  few  days  before  he  was  killed, 
by  a  mad  dog.  There  being  a  very  great  alarm  in  the  village  of  Lan- 
singburgh, on  account  of  mad  dogs,  the  inhabitants  petitioned  the 
trustees  to  pass  bj'-laws  for  restraining  dogs,  and  killing  those  that 
should  be  found  at  large;  and  the  trustees  accordingly  passed  a  law, 
declaring  it  lawful  for  any  person  to  kill  any  dog  which  should  be  found 
at  large  in  the  village.  It  was  also  proved  that  the  plaintiff  below 
called  upon  the  defendant,  and  informed  him,  that  a  certain  other  dog 
in  the  village  was  mad,  and  requested  him  to  go  and  shoot  it;  that  the 
defendant  accordingly  took  his  gun  for  that  purpose,  and  in  passing 
through  the  village  met  the  plaintiff's  dog  running  loose,  and  shot  him 
dead.    Judgment  was  given  for  the  plaintiff'  below. 

Per  Curiam.  It  is  unnecessary,  in  this  case,  to  decide  whether  the 
act  complained  of  could  be  justified  under  the  by-law  of  the  corpora- 
tion. 

The  defendant  was  fully  justified  in  killing  the  dog,  under  the  cir- 
cumstances of  the  case,  upon  common  law  principles.  The  dog  was, 
generally,  a  dangerous  and  unruly  animal,  and  his  owner  knew  it;  yet 
he  permitted  him  to  run  at  large,  or  kept  him  so  negligently,  that  he 
escaped  from  his  confinement.  Such  negligence  was  wanton  and  cruel, 
and  fully  justified  the  defendant  in  killing  the  dog  as  a  nuisance.  The 
public  safety  demands  this  rule.  It  is  little  better  than  mockery  to 
say  that  a  person  injured  by  such  an  animal  might  sue  for  damages, 
or  for  penalties. 

But,  in  addition  to  this,  the  dog  had  lately  been  bitten  by  a  mad  dog; 
this,  in  itself,  was  sufficient  to  justify  any  person  in  killing  him,  if 
found  running  at  large.  We  do  not  mean  to  say  that  this  would  be 
allowed  as  a  justification  in  killing  more  useful,  and  less  dangerous, 
animals,  as  hogs,  etc. 

Judgment  reversed. 


G28  SUROCCO    V.    GEARY.  [CHAP.  V. 


SUROCCO  V.  GEARY. 
Supreme  Court  of  California,  1853. 

[Reported  3  Cal.  69.] 

Murray,  C.  J.,  delivered  the  opinion  of  the  court.  Heydenfeldt,  J., 
concurred. 

This  was  an  action,  commenced  in  the  court  below,  to  recover  dam- 
ages for  blowing  up  and  destroying  the  plaintiffs'  house  and  property, 
during  the  fire  of  the  24th  of  December,  1849. 

Geary,  at  that  time  Alcade  of  San  Francisco,  justified,  on  the  ground 
that  he  had  authority,  by  virtue  of  his  oflBce,  to  destroy  said  building, 
and  also  that  it  had  been  blown  up  by  him  to  stop  the  progress  of  the 
conflagration  then  raging. 

It  was  in  proof,  that  the  fire  passed  over  and  burned  beyond  the 
building  of  the  plaintiffs',  and  that  at  the  time  said  building  was 
destroyed,  they  were  engaged  in  removing  their  property,  and  could, 
had  they  not  been  prevented,  have  succeeded  in  removing  more,  if 
not  all  of  their  goods. 

The  cause  was  tried  by  the  court  sitting  as  a  jury,  and  a  verdict 
rendered  for  the  plaintiffs,  from  which  the  defendant  prosecutes  this 
appeal  under  the  Practice  Act  of  1850. 

The  only  question  for  our  consideration  is,  whether  the  person  who 
tears  down  or  destroys  the  house  of  another,  in  good  faith,  and  under 
apparent  necessity,  during  the  time  of  a  conflagration,  for  the  purjwse 
of  saving  the  buildings  adjacent,  and  stopping  its  progress,  can  be  held 
personally  liable  in  an  action  by  the  owner  of  the  property  destroyed. 

This  point  has  been  so  well  settled  in  the  courts  of  New  York  and 
New  Jersey,  that  a  reference  to  those  authorities  is  all  that  is  necessary 
to  determine  the  present  case. 

The  right  to  destroy  property,  to  prevent  the  spread  of  a  conflagra- 
tion, has  been  traced  to  the  highest  law  of  necessity,  and  the  natural 
rights  of  man,  independent  of  society  or  civil  government.  "It  is 
referred  by  moralists  and  jurists  to  the  same  great  principle  which 
justifies  the  exclusive  appropriation  of  a  plank  in  a  shipwreck,  though 
the  life  of  another  be  sacrificed ;  with  the  throwing  overboard  goods  in 
a  tempest,  for  the  safety  of  a  vessel ;  with  the  trespassing  upon  the  lands 
of  another,  to  escape  death  by  an  enemy.  It  rests  upon  the  maxim, 
Necessitas  inducit  privilegium,  quod  jura  privata." 

The  common  law  adopts  the  principles  of  the  natural  law,  and  places 
the  justification  of  an  act  otherwise  tortious  precisely  on  the  same 
ground  of  necessity.     (See  1st  Zabriskie,  American  Print   Works  v. 
Lawrence,  and  the  cases  there  cited.) 
^    This  principle  has  been  famiUarly  recognized  by  the  books  from  the 


SECT,  II.]  ■  SUROCCO   V.    GEAEY.  629 

time  of  the  saltpetre  case,  and  the  instances  of  tearing  down  houses  to 
prevent  a  conflagration,  or  to  raise  bulwarks  for  the  defense  of  a  city, 
are  made  use  of  as  illustrations,  rather  than  as  abstract  cases,  in  which 
its  exercise  is  permitted.  At  such  times,  the  indi\'idual  rights  of  prop- 
erty give  way  to  the  higher  laws  of  impending  necessity. 

A  house  on  fire,  or  those  in  its  immediate  vicinity,  which  serve  to 
communicate  the  flames,  becomes  a  nuisance,  which  it  is  lawful  to 
abate,  and  the  private  rights  of  the  individual  yield  to  the  considera- 
tions of  general  convenience,  and  the  interests  of  society.  Were  it 
otherwise,  one  stubborn  person  might  involve  a  whole  city  in  ruin,  by 
refusing  to  allow  the  destruction  of  a  building  which  would  cut  off  the 
flames  and  check  the  progress  of  the  fire,  and  that,  too,  when  it  was 
perfectly  evident  that  his  building  must  be  consumed. 

The  respondent  has  invoked  the  aid  of  the  constitutional  pro^^sion 
which  prohibits  the  taking  of  private  property  for  public  use,  without 
just  compensation  being  made  therefor.  This  is  not  "a  taking  of 
private  property  for  public  use,"  within  the  meaning  of  the  Constitu- 
tion. 

The  right  of  taking  indi\'idual  property  for  public  purposes  belongs 
to  the  State,  by  virtue  of  her  right  of  eminent  domain,  and  is  said  to 
be  justified  on  the  ground  of  state  necessity ;  but  this  is  not  a  taking  or 
a  destruction  for  a  public  purpose,  but  a  destruction  for  the  benefit 
of  the  indi\idual  or  the  city,  but  not  properly  of  the  State. 

The  counsel  for  the  respondent  has  asked,  who  is  to  judge  of  the 
necessity  of  the  destruction  of  property? 

This  must,  in  some  instances,  be  a  difficult  matter  to  determine. 
The  necessity  of  blowing  up  a  house  may  not  exist,  or  be  as  apparent 
to  the  owner,  whose  judgment  is  clouded  by  interest,  and  the  hope  of 
saving  his  property,  as  to  others.  In  all  such  cases  the  conduct  of  the 
individual  must  be  regulated  by  his  own  judgment  as  to  the  exigencies 
of  the  case.  If  a  building  should  be  torn  down  without  apparent  or 
actual  necessity,  the  parties  concerned  would  undoubtedly  be  liable  in 
an  action  of  trespass.  But  in  every  case  the  necessity  must  be  clearly 
shown.  It  is  true,  many  cases  of  hardship  may  grow  out  of  this  rule, 
and  property  may  often  in  such  cases  be  destroyed,  without  necessity, 
by  irresponsible  persons,  but  this  difficulty  would  not  be  ob\iated  by 
making  the  parties  responsible  in  every  case,  whether  the  necessity 
existed  or  not. 

The  legislature  of  the  State  possess  the  power  to  regulate  this  sub- 
ject by  pro\ading  the  manner  in  which  buildings  may  be  destroyed, 
and  the  mode  in  which  compensation  shall  be  made;  and  it  is  to  be 
hoped  that  something  will  be  done  to  ob\aate  the  difficulty,  and  pre- 
vent the  happening  of  such  events  as  those  supposed  by  the  re- 
spondent's counsel. 

In  the  absence  of  any  legislation  on  the  subject,  we  are  compelled  to 
fall  back  upon  the  rules  of  the  common  law. 


630  PROCTOE   V.    ADAMS.  [CHAP.  V. 

The  evidence  in  this  case  clearly  establishes  the  fact,  that  the  blow- 
ing up  of  the  house  was  necessary,  as  it  would  have  been  consumed 
had  it  been  left  standing.  The  plaintiffs  cannot  recover  for  the  value 
of  the  goods  which  they  might  have  saved;  they  were  as  much  sub- 
ject to  the  necessities  of  the  occasion  as  the  house  in  which  they  were 
situate;  and  if  in  such  cases  a  party  was  held  liable,  it  would  too  fre- 
quently happen,  that  the  delay  caused  by  the  removal  of  the  goods 
would  render  the  destruction  of  the  house  useless. 

The  court  below  clearly  erred  as  to  the  law  applicable  to  the  facts 
of  this  case.  The  testimony  will  not  warrant  a  verdict  against  the 
defendant.^ 

Judgment  reversed. 


PROCTOR  V.  ADAMS. 
Supreme  Judicial  Court  of  Massachusetts,  1873. 

[Reported  113  Mass.  376.] 

Tort,  in  the  nature  of  trespass  quare  clausum,  for  entering  the  plain- 
tiff's close  and  carrying  away  a  boat. 

At  the  trial  in  the  Superior  Court,  before  Brigham,  C.  J.,  it  appeared 
that  the  premises  described  in  the  declaration  were  a  sandy  beach 
on  the  sea  side  of  Plum  Island,  and  that  the  defendants  went  there, 
between  high  and  low  water  mark,  January  19,  1873,  and  against  the 
objection  and  remonstrances  of  the  plaintiff's  tenant,  carried  away  a 
boat  worth  $50,  which  they  found  lying  there. 

The  defendants  ottered  e^^dence  that  upon  the  night  of  January 
18,  1873,  there  was  a  severe  storm;  that  the  next  morning  they  went 
upon  the  beach  to  see  if  any  vessels  or  property  had  been  cast  ashore; 
that  they  found  a  boat  Kang  upon  the  beach  about  twenty-five  feet 
below  high  water  mark,  which  had  apparently  been  driven  ashore  in 
the  storm ;  that  in  order  to  save  it,  they  endeavored  to  haul  it  upon  the 
beach,  and  succeeded  in  putting  it  near  the  line  of  high  water  mark; 
that,  not  thinking  it  secure,  they,  the  next  day,  pushed  it  into  the  water, 
and  carried  it  around  into  Plum  Island  River,  on  the  inside  of  the  island; 
that  they  at  once  advertised  it  in  the  Ipswich  and  Newburyport  papers; 
that  they  shortly  afterwards  delivered  it  to  one  Jackman,  who  claimed 
it  as  agent  for  the  underwriters  of  the  wrecked  steamer  Sir  Francis, 
and  who  paid  them  twehe  dollars  for  their  ser\qces  and  expenses. 

The  court  ruled  that  these  facts,  if  proved,  would  not  constitute  a 
defense,  and  proposed  to  instruct  the  jury  as  follows: 

"  If  the  land  upon  which  the  boat  was  found  and  taken  possession  of 

1  See  also  Dewey  v.  White,  M.  &  M.  56;  Drake  v.  Shorter,  4  Esp.  165.  —  Ed. 


SECT.  II.]  PROCTOR   V.   ADAMS.  631 

by  the  defendants  was  in  the  possession  or  occupation  of  the  plaintiff, 
the  defendants'  entry  upon  it  without  permission  of  the  plaintiff  was  an 
unlawful  entry. 

"  If  the  defendants,  having  made  an  unlawful  entry  upon  the  plain- 
tiff's land,  there  took  and  therefrom  carried  a  boat,  for  any  purpose 
affecting  the  boat  as  derelict  or  wrecked  property,  they  are  liable  to 
the  plaintiff  for  their  unlawful  entry  upon  the  land  in  nominal  damage, 
and  also,  the  boat  not  being  their  property,  but  a  wreck,  in  damages 
for  the  unlawful  taking  and  carrying  away  of  the  boat,  to  the  value  of 
the  boat." 

The  defendants  requested  the  court  to  rule  that,  upon  the  case  pre- 
sented, the  law  would  imply  a  license,  but  the  court  declined  so  to 
rule.  The  defendants  then  declined  to  go  to  the  jury,  and  the  court 
instructed  the  jury  to  return  a  verdict  for  the  plaintiff  for  Sol,  and  re- 
ported the  case  to  this  court. 

Gray,  C.  J.    The  boat,  having  been  cast  ashore  by  the  sea,  was  a 
wreck,  in  the  strictest  legal  sense.    3.  Bl.  Com.,  106.    Chase  ».  Corcoran, 
106  Mass.  286,  288.    Neither  the  finders  of  the  boat,  nor  the  owner  of  (\ll^(j''v\j 
the  beach,  nor  the  Commonwealth,  had  any  title  to  the  boat  as  against  [ 

its  former  owner.  Body  of  Liberties,  art.  90.  Anc.  Chart.,  211. 
2  Mass.  Col.  Rec,  143.    St.  1814,  c.  170.    Rev.  Sts.  c.  57.    Gen.  Sts.  ^  ^" 

c.  81.  3  Dane  Ab.,  134,  136,  138,  144.  2  Kent  Com.,  322,  359.  But 
the  owner  of  the  land  on  which  the  boat  was  cast  was  under  no  duty 
to  save  it  for  him.    Sutton  v.  Buck,  2  Taunt.,  302,  312. 

If  the  boat,  being  upon  land  between  high  and  low  water  mark,    |    ,  ' 

owned  or  occupied  by  the  plaintiff,  was  taken  by  the  defendants, 
claiming  it  as  their  own,  when  it  was  not,  the  plaintiff  had  a  sufficient 
right  of  possession  to  maintain  an  action  against  them.  Barker  v. 
Bates,  13  Pick.  255.  Dunwich  v.  Sterry,  1  B.  &  Ad.  831.  But  if, 
as  the  e\'idence  offered  by  them  tended  to  show,  the  boat  was  in  danger 
of  being  carried  off  by  the  sea,  and  they,  before  the  plaintiff  had  taken  7^ 

possession  of  it,  removed  it  for  the  purpose  of  saving  it  and  restoring 
it  to  its  lawful  owner,  they  were  not  trespassers.  In  such  a  case,  though 
they  had  no  permission  from  the  plaintiff  or  any  other  person,  they  r 
had  an  implied  license  by  law  to  enter  on  the  beach  to  save  the  prop- 
erty. It  is  a  very  ancient  rule  of  the  common  law,  that  an  entry  upon 
land  to  save  goods  which  are  in  jeopardy  of  being  lost  or  destroyed  by 
water,  fire,  or  any  like  danger,  is  not  a  trespass.  21  H.  VII,  27,  28,  ^ 
pi.  5.  Bro.  Ab.  Trespass,  213.  Vin.  Ab.  Trespass,  (H.  a.  4)  pi.  24  ad 
fin.;  (K.  a.)  pi.  3.  In  Dunwich  v.  Sterry,  1  B.  &  Ad.  831,  a  case  very 
like  this,  Mr.  Justice  Parke  (afterwards  Baron  Parke  and  Lord  Wens- 
leydale)  left  it  to  the  jury  to  say  whether  the  defendant  took  the  prop- 
erty for  the  benefit  of  the  owners,  or  under  a  claim  of  his  own  and  ta 
put  the  plaintiffs  to  proof  of  their  title.  In  Barker  v.  Bates,  13  Pick. 
255,  upon  which  the  plaintiff  mainly  relies,  the  only  right  claimed  by 
the  defendants  was  as  finders  of  the  property  and  for  their  own  benefit. 


3 


632  SEAVEY   V.    PREBLE.  [CHAP.  V. 

The  defendants  are  therefore  entitled  to  a  new  trial.  As  the  answer 
was  not  objected  to,  and  the  declaration  may  be  amended  in  the 
court  below,  we  have  not  considered  the  form  of  the  pleadings. 

New  trial  ordered. 


SEAVEY  V.   PREBLE. 
Supreme  Judicial  Court  of  Maine,  1874. 

[RepoTicd  64  Me.  120.] 

Walton,  J.  We  perceive  no  objection  to  the  form  of  the  action  in 
this  case.  It  is  well  settled  that  trespass  quarc  clausum  fregit  may  be 
maintained  by  the  owner  of  real  estate  for  an  injury  to  the  freehold, 
notwithstanding  it  was  in  the  possession  of  a  tenant  at  will  at  the  time 
of  the  alleged  injury.    Da\ns  v.  Nash,  32  Maine,  411. 

But  we  think  the  verdict  is  clearly  against  evidence. 

When  the  small-pox  or  any  other  contagious  disease  exists  in  any 
town  or  city  the  law  demands  the  utmost  vigilance  to  prevent  its 
spread.  "All  possible  care"  are  the  words  of  the  statute.  R.  S.  c. 
14,  §30. 

To  accomplish  this  object  persons  may  be  seized  and  restrained  of 
their  liberty  or  ordered  to  leave  the  State;  private  houses  may  be  con- 
verted into  hospitals  and  made  subject  to  hospital  regulations;  build- 
ings may  be  broken  open  and  infected  articles  seized  and  destroyed, 
and  many  other  things  done  which  under  ordinary  circumstances  would 
be  considered  a  gross  outrage  upon  the  rights  of  persons  and  property. 
This  is  allowed  upon  the  same  principle  that  houses  are  allowed  to  be 
torn  down  to  stop  a  conflagration.  Saliis  populi  suprema  lex  —  the 
safety  of  the  people  is  the  supreme  law  —  is  the  governing  principle 
in  such  cases. 

Where  the  public  health  and  human  life  are  concerned  the  law  re- 
quires the  highest  degree  of  care.  It  will  not  allow  of  experiments  to 
see  if  a  less  degree  of  care  will  not  answer.  The  keeper  of  a  furious  dog 
or  a  mad  bull  is  not  allowed  to  let  them  go  at  large  to  see  whether  they 
will  bite  or  gore  the  neighbor's  children.  Nor  is  the  dealer  in  nitro- 
glycerine allowed  in  the  presence  of  his  customers  to  see  how  hard  a 
kick  a  can  of  it  will  bear  without  ex-ploding.  Nor  is  the  dealer  in  gun- 
powder allowed  to  see  how  near  his  magazine  may  be  located  to  a  black- 
smith's forge  without  being  blown  up.  Nor  is  one  using  a  steam  engine 
to  see  how  much  steam  he  can  possibly  put  on  without  bursting  the 
boiler.  No  more  are  those  in  charge  of  small-pox  patients  allowed  to 
experiment  to  see  how  little  cleansing  will  answer;  how  much  paper  spit 
upon  and  bedaubed  with  small-pox  \nrus  it  will  do  to  leave  upon  the 
walls  of  the  rooms  where  the  patients  have  been  confined.    The  law 


SECT.  II.] 


SEAVEY    V.    PREBLE. 


633 


will  not  tolerate  such  experiments.  It  demands  the  exercise  of  all 
possible  care.  In  all  cases  of  doubt  the  safest  course  should^be  pursued, 
remembering  that  it  is  infinitely  better  to  do  too  much  than  run  the 
risk  of  doing  too  little. 

Unfortunately  medical  science  has  not  yet  arrived  at  that  degree  of 
perfection  which  will  enable  its  practitioners  to  agree.  There  is  scarcely 
a  case  tried  where  medical  testimony  is  used,  in  which  the  doctors  do 
not  disagree.  The  swearing  is  sometimes  so  bitterly  antagonistic  as 
to  make  it  painful  to  listen  to  it. 

There  is  the  usual  conflict  of  medical  testimony  in  this  case.  The 
defendant  and  other  physicians  called  by  him  as  witnesses  express 
the  opinion  that  it  is  necessary  in  order  to  cleanse  a  room  in  which 
small-pox  patients  have  been  confined  to  remove  the  paper  from  the 
walls.  The  plaintifF  (himself  a  physician)  and  the  other  physicians 
called  by  him  as  witnesses  express  the  opinion  that  it  is  not  necessary. 
Several  of  them  however  admit  that  if  the  paper  is  loose,  or  the  small- 
pox virus  has  actually  come  in  contact  with  it,  it  should  be  removed. 

Mrs.  Liscomb,  the  nurse  employed  by  the  city  to  take  care  of  this 
family,  testifies  that  the  paper  needed  to  be  taken  off;  that  it  was  dirty 
around  where  the  diseased  folks  Were;  that  it  was  all  dirty;  that  the 
spittle  from  the  mouths  of  the  patients  flew  upon  it.  Doctor  Blaids- 
dell,  who  attended  the  family  some  two  or  three  weeks  before  it  came 
under  the  care  of  the  defendant,  testifies  that  he  noticed  the  paper 
particularly  about  the  bed  and  that  it  was  a  good  deal  soiled;  that  he 
supposed  the  patient  must  have  spit  a  good  deal  and  was  not  par- 
ticular where  he  spit;  that  in  such  cases  it  is  difficult  to  expectorate; 
that  the  mere  A-iolent  the  disease  the  more  adhesive  the  saliva;  that 
there  is  usually  a  great  deal  of  saliva  in  all  cases;  that  in  this  case  the 
patient  lay  against  the  wall  some  of  the  time  and  that  when  the  patient 
is  against  the  wall  and  soils  the  paper  by  saliva  and  by  putting  his  hands 
upon  it  the  best  medical  advice  is  to  remove  it  and  whitewash  the  wall 
with  quicklime;  that  in  this  case  he  should  have  stripped  off  all  the 
paper.  Other  physicians  called  by  the  defendant  express  substantially 
the  same  opinion. 

Under  these  circumstances  what  was  it  the  duty  of  the  defendant  to 
do?  The  small-pox  seems  to  have  been  unusually  prevalent.  The 
defendant  testifies  that  he  had  a  hundred  and  seven  cases  during  the 
winter.  He  was  city  physician.  Upon  his  efforts  in  a  large  degree 
depended  the  safety  of  the  city.  He  could  not  go  to  his  medical 
brethren  for  direction,  for  they  as  usual  were  divided  in  opinion.  The 
mandate  of  the  law  to  him  was  "Use  all  possible  care."  Under  these 
circumstances  we  think  he  was  justified  in  advising  the  removal  of 
the  paper  from  the  walls  of  the  rooms  in  which  the  small-pox  patients 
had  been  confined,  and  that  the  law  protected  him  in  so  doing. 

Motion  sustained. 


634  PAUL    V.    SUMMERHATES.  [CHAP.  V. 


PAUL  V.  summerha\t:s. 

Queen's  Bench  Division,  1878. 

[Reported  L.  R.  4  Q.  B.  D.  9.] 

Case  stated  by  justices  under  20  &  21  Vict.  c.  43,  upon  a  conviction 
of  the  appellants  upon  an  information  for  an  assault. 

The  appellants  were  persons  who,  on  the  occasion  in  question,  were 
engaged  in  hunting  with  a  pack  of  foxhounds.  In  the  pursuit  of  a  fox, 
which  the  hounds  were  running,  the  appellants  sought  to  enter  upon  a 
field  forming  part  of  a  farm  belonging  to  the  respondent's  father, 
which  the  respondent  managed  on  his  father's  behalf.  The  respondent 
warned  them  off,  and  endeavoured  to  resist  their  entry  on  the  field. 
For  the  purpose  of  overcoming  his  resistance  to  their  entry,  they  com- 
mitted the  assault  complained  of,  and  the  main  question  in  the  case 
was  whether,  under  the  above-mentioned  circumstances,  there  was  any 
justification  for  the  assault.  The  justices  convicted  the  appellants  in 
the  sums  of  20^.  and  \0s.  respectively. 

Lord  Coleridge,  C.  J.  I  am  of  opinion  that  the  conviction  should 
be  affirmed.  The  statute  1  &  2  Wm.  4,  c.  32,  s.  35,  really  has  no  ap- 
plication to  the  case.  That  section  of  the  statute  merely  provides  that 
certain  foregoing  provisions  shall  not  apply  to  persons  in  fresh  pursuit 
of  a  fox.  But,  in  truth,  when  the  statute  is  examined,  it  will  be  seen 
that  those  provisions  would  not  apply  to  the  pursuit  of  the  fox,  the 
animal  not  being  game.  So  the  provisions  of  s.  35  seem  only  to  have 
been  put  in  ex  majori  cautela,  to  prevent  certain  penalties  for  a  particular 
class  of  trespass,  viz.,  trespass  in  pursuit  of  game,  from  applying  to 
foxhunters.  There  is  nothing,  therefore,  in  the  act  to  alter  the  common 
law  with  regard  to  trespass  so  far  as  concerns  foxhunting.  The  real 
question  is  whether  under  the  circumstances  the  respondent  was 
justified  in  resisting  the  entry  of  the  appellants  on  his  father's  land. 
I  am  of  opinion  that  he  was.  It  was  suggested  that  there  is  authority 
that  foxhunting  in  the  popular,  well  understood,  sense  of  the  term, 
that  is,  as  a  sport,  can  be  carried  on  over  the  land  of  a  person  without 
his  consent  and  against  his  will,  and  the  case  of  Gundry  v.  Feltham, 
1  T.  R.  334,  was  cited  as  authority  for  that  proposition.  I  am  of 
opinion  that  no  such  right  as  that  claimed  exists.  The  sport  of  fox- 
hunting must  be  carried  on  in  subordination  to  the  ordinary  rights  of 
property.  Questions  such  as  the  present  fortunately  do  not  often 
arise,  because  those  who  pursue  the  sport  of  foxhunting  do  so  in  a 
reasonable  spirit,  and  only  go  upon  the  lands  of  those  whose  consent 
is  expressly,  or  may  be  assumed  to  be  tacitly,  given.  There  is  no 
principle  of  law  that  justifies  trespassing  over  the  lands  of  others  for 
the  purpose  of  foxhunting.    The  case  of  Gundry  v.  Feltham,  1  T.  R.  334, 


SECT.  II.]  PAUL  V.    SUMMERHAYES.  635 

is  distinguishable  from  the  present  case,  and  can  be  supported,  if  it 
is  to  be  supported  at  all,  only  on  the  grounds  suggested  by  Lord  Ellen- 
borough  in  the  case  of  Lord  Essex  v.  Capel,  Locke  on  Game  Laws,  45, 
to  which  we  have  been  referred.  The  demurrer  admitted  that  what  was 
done  was  the  only  means  for  destroying  the  fox,  and  Buller,  J.,  expressly 
puts  his  decision  on  that  ground.  The  case  was  brought  under  the  con- 
sideration of  Lord  Ellenborough  in  Lord  Essex  v.  Capel,  Locke  on 
Game  Laws,  45,  and  he  was  distinctly  of  opinion  that,  where  any  other 
object  was  involved  than  that  of  the  destruction  of  a  noxious  animal, 
an  entry  on  the  land  of  another,  against  his  will,  could  not  be  justi- 
fied. In  the  case  of  Lord  Essex  v.  Capel,  Locke  on  Game  Laws,  45,  it 
had  been  pleaded  that  the  means  adopted  were  the  only  means,  and 
also  that  they  were  the  ordinary  and  proper  means  of  destroying  the 
fox.  But  the  evidence  clearly  showed  that  in  the  case  of  foxhunting, 
as  ordinarily  pursued,  the  object  of  destroying  the  animal  is  only  col- 
lateral. The  interest  and  excitement  of  the  chase  is  the  main  object. 
Lord  Ellenborough,  than  whom  there  could  be  no  higher  authority  on 
such  a  point,  was  of  opinion  that  where  this  was  the  case,  and  where 
the  real  object  was  not  the  mere  destruction  of  a  noxious  animal,  a 
trespass  could  not  be  justified.  If  persons  pursue  the  fox  for  the 
purpose  of  sport  or  diversion,  they  must  do  so  subject  to  the  ordi- 
nary rights  of  property.  It  would  seem  that  there  may  be  some  doubt 
as  to  the  validity  of  the  justification  even  where  the  only  object  is  the 
destruction  of  a  noxious  animal.  The  idea  that  there  was  such  a 
right  as  that  of  pursuing  a  fox  on  another's  land  appears  to  have  been 
based  on  a  mere  dictum  of  Brook,  J.,  in  the  Year  Book,  12  Hen.  8,  p.  10. 
This  dictum  was  not  necessary  for  the  decision  of  the  case,  for  there 
the  chasing  of  a  fox  was  not  in  question,  and  the  case  went  off  on  an 
entirely  different  point.  It  may  well  be  doubted  in  my  opinion  whether, 
even  if  the  case  were  one  in  which  the  destruction  of  a  fox  as  a  noxious 
animal  was  the  sole  object,  there  would  be  any  justification.  That 
question,  however,  does  not,  I  think,  arise  here.  It  is  enough  to  say 
that  the  case  of  Gundry  v.  Feltham,  1  T.  R.  334,  and  the  dictum  of 
Brook,  J.,  in  the  Year  Book,  12  Hen.  8,  p.  10,  do  not  at  all  conflict 
with  the  opinion  expressed  by  Lord  Ellenborough  in  Lord  Essex  v. 
Capel,  Locke  on  Game  Laws,  45,  which  appears  to  me  to  be  the  true 
view  of  the  law,  xaz.,  that  a  person  has  no  right,  in  the  pursuit  of  the 
fox  as  a  sport,  to  come  upon  the  land  of  another  against  his  will. 
For  these  reasons  our  judgment  must  be  for  the  respondent. 

Mellor,  J.  I  am  of  the  same  opinion.  The  1  &  2  ^Ym.  4,  c.  32, 
has  really  no  application  to  the  case.  The  31st  section  of  the  act 
contains  certain  pro\asions  for  preventing  trespasses  in  pursuit  of 
game.  Foxes,  however,  are  not  game,  and  so  not  within  the  provisions 
of  the  section.  In  any  case  the  exception  in  favour  of  foxhunting  in  the 
35th  section  could  only  apply  to  the  special  provisions  of  the  act  for 
the  protection  of  game,  and  could  not  affect  the  question  whether  a 


636  KELEHER   V.   PUTNAM.  [CHAP.  V. 

trespass  could  be  justified  at  common  law  in  the  course  of  hunting  a 
fox,  which  is  the  real  question  in  the  case.  That  question  has  been 
fully  discussed  by  my  Lord.  The  counsel  for  the  appellants  did  not 
venture  to  insist,  in  contravention  of  all  common  sense  and  experience, 
that  the  object  of  foxhunting,  as  ordinarily  pursued,  was  the  destruc- 
tion of  a  noxious  animal  which  does  mischief  to  farmers  and  others. 
The  case  of  Gundry  v.  Feltham,  1  T.  R.  334,  is  therefore  distinguishable. 
The  view  taken  by  Lord  Ellenborough  in  the  case  of  Lord  Essex  v. 
Capel,  Locke  on  Game  Laws,  45,  in  which  the  question  was  really  the 
same  as  that  in  the  present  case,  was  quite  consistent  with  the  decision 
in  Gundry  v.  Feltham,  1  T.  R.  334,  and  it  appears  to  me  to  be  the  only 
view  that  is  possible  consistently  with  common  sense  and  the  ordinary 
rights  of  property.^ 

Judgment  for  the  respondent. 


KELEHER  v.  PUTNAM. 

Supreme  Court  of  New  Hampshire,  1880. 

[Reported  60  TV.  H.  30.] 

Trespass,  for  assault  and  false  imprisonment.  Plea,  the  general 
issue,  with  a  brief  statement.  The  plaintiff  kept  a  small  store  in 
Manchester.  Putnam,  one  of  the  defendants,  was  a  county  com- 
missioner. The  e\adence  tended  to  show  that  the  plaintiff  was 
afflicted  with  insane  delusions,  and  disturbed  her  neighbors  and  the 
inmates  of  the  house  where  she  boarded.  Physicians  examined  her, 
and  said  she  ought  to  be  cared  for.  Complaint  being  made  to  Putnam, 
he  \'isited  her,  and,  in  answer  to  his  inquiries,  she  informed  him  she 
had  friends  in  Lawrence,  Mass.,  and  requested  to  be  sent  there. 

He  told  her  he  would  send  a  man  with  her.  For  that  purpose  he 
employed  Reed,  the  other  defendant,  who  called  at  the  plaintiff's 
store  with  a  carriage,  and  told  her  he  had  come  to  take  her  to  Law- 
rence. She  manifested  a  disposition  not  to  go,  and  Reed  partly  pushed 
and  partly  carried  her  into  the  carriage,  which  was  driven  to  the  depot, 
where  they  entered  a  car  and  were  taken  to  Lawrence.  There  he  de- 
livered her  to  the  city  marshal,  whom  he  informed  of  the  circumstances. 
The  court  instructed  the  jury  that  if  the  plaintiff  requested  Putnam 
to  take  her  to  Lawrence,  or  if  she  was  insane  or  dangerous,  or  dis- 
turbing the  neighborhood,  and  if  he  acted  solely  from  the  motive  of 
placing  her  in  the  custody  of  her  friends  so  that  she  might  be  properly 
cared  for,  and  not  to  rid  the  county  of  a  public  charge,  the  defendants 
were  not  liable;  and  the  plaintiff  excepted.    Verdict  for  the  defendants. 

Bingham,  J.     A  county  commissioner  has   no   authority  over  in- 

*  See  also  Essex  v.  Capel,  4  Campb.  Lives  Ch.  Just.  225,  Ames  Cas.  Torts  (3d 
ed.)  216.—  Ed. 


SECT.  II.]  FIELDS    V.    STOKLEY.  637 

sane  persons  by  virtue  of  his  office.    The  right  of  personal  Kberty  is 
subject  to  some  exceptions  necessary  to  the  common  welfare  of  society. 
At  common  law  a  private  citizen,  without  warrant,  may  lawfully  seize 
and  detain  another  in  certain  cases.     It  is  justifiable  to  hold  a  man  ^ 
to  restrain  him  from  mischief.     It  is  lawful  to  interfere  in  an  affray 
which  endangers  the  lives  of  the  combatants.     Other  instances  are 
enumerated  in  Colby  v.  Jackson,  12  N.  H.  526.    Under  the  right  of 
self-defense  it  is  lawful  to  seize  and  restrain  any  person  incapable  of 
controlling  his  own  actions,  whose  being  at  large  endangers  the  safety 
of  others.     But  this  is  justifiable  only  when  the  urgency  of  the  case 
demands  immediate  intervention.    The  right  to  exercise  this  summary 
remedy  has  its  foundation  in  a  reasonable  necessity,  and  ceases  with 
the  necessity.     A  dangerous  maniac  may  be  restrained  temporarily 
until  he  can  be  safely  released,  or  can  be  arrested  upon  legal  process, 
or  committed  to  the  asylum  under  legal  authority.    But  not  every  in- 
sane person  is  dangerous.    Nothing  can  be  more  harmless  than  some  of 
the  milder  forms  of  insanity.    Nor  is  it  any  justification  that  the  de- 
fendants were  actuated  by  a  desire  to  promote  the  plaintiff's  welfare. 
The  right  of  personal  liberty  is  deemed  too  sacred  to  be  left  to  the 
determination  of  an  irresponsible  individual,  however  conscientious. 
The  law  gives  these  unfortunate  persons  the  safeguards  of  legal  pro- 
ceedings and  the  care  of  responsible  guardians.     Davis  v.   Merrill, 
47  N.  H.  208;  22  Monthly  Law  Rep.,  385;  6  South.  Law  Rev.  (N.  S.), 
568;  3  Am.  Law  Rev.,  193;  Ray  Insan.,  ss.  614-619.    The  legislature 
has  established  appropriate  forms  of  proceeding  for  ascertaining  their 
mental  condition,  imposing  upon  them,  under  the  supervision  of  public 
functionaries,  the  restraint  necessary  to  protect  them  from  the  imposi- 
tion of  others,  and  subjecting  them  to  such  treatment  as  may  restore 
their  reason.    If  the  plaintiflF  requested  to  be  taken  to  Lawrence,  she 
revoked  the  license  by  resisting  the  removal.    The  instructions  given 
to  the  jury  were  erroneous.    The  question  was,  whether  the  plaintiff's 
removal  was  reasonably  necessary  under  the  circumstances  of  the  case. 
Cooley  Torts,  176-179;  Addison  Torts,  c.  12,  s.  2. 


Verdict  set  aside. 


Stanley,  J.,  did  not  sit:  the  others  concurred. 


FIELDS  V.  STOKLEY. 
Supreme  Court  of  Pennsylvania,  1882. 

[Reported  99  Pa.  206.] 

Trespass,  by  George  F.  Fields  against  William  S.  Stokley,  to 
recover  damages  for  the  destruction  of  a  wooden  building  belonging 
to  the  plaintiff  which  had  been  torn  down  and  demolished  by  defend- 


638  FIELDS   V.   STOKLEY.  [CHAP.  V. 

ant's  orders.  Pleas,  not  guilty,  and  a  special  plea,  to  which  a  demurrer 
was  sustained. 

Defendant  then  filed  an  additional  plea,  all  the  facts  set  forth  in 
which  were  admitted  on  the  trial,  to  wit:  That  the  defendant  was,  in 
September,  1876,  at  the  date  of  the  alleged  trespass,  mayor  of  Phila- 
delphia, and  also  a  citizen,  tax-payer,  and  property  owner;  that  the 
United  States  Centennial  Exhibition  was  then  in  progress  at  Fairmount 
Park;  that  the  plaintiff  and  others,  in  violation  of  an  ordinance  of 
councils,  had  erected  on  Elm  Avenue,  bordering  on  the  Exhibition 
grounds,  numbers  of  wooden  booths,  sheds,  shanties,  and  buildings, 
composed  wholly  of  highly  combustible  materials,  insufficiently  pro- 
vided with  chimneys  or  protected  against  fire,  that  of  the  plaintiff 
being  occupied  as  a  bar-room,  and  the  resort  of  disorderly  persons; 
that  the  said  premises  were  in  close  proximity  to  the  buildings  of  the 
city,  State,  and  other  buildings  of  the  International  Exposition,  which 
were  thereby  imperiled.  That  the  grand  jury  made  a  special  present- 
ment to  the  quarter  sessions  of  the  said  wooden  buildings  as  common 
nuisances,  dangerous  to  life  and  property,  whereupon  the  judge  then 
holding  said  court,  ordered  the  defendant,  as  mayor,  to  abate  said  nui- 
sance by  tearing  down  and  removing  said  buildings,  if  the  owners 
thereof,  after  forty-eight  hours'  notice,  failed  so  to  do ;  and  the  plaintiff 
having  failed  to  remove  the  building  in  question  after  notice,  the  de- 
fendant caused  the  same  to  be  torn  down,  doing  as  little  damage  as 
he  reasonably  could,  etc. 

It  further  appeared  on  the  trial,  before  Pcirce,  J.,  that  the  plaintiff 
had  leased  the  lots  whereon  the  building  in  question  was  erected;  that 
it  was  so  erected  without  a  permit  from  the  building  inspectors,  and 
without  authority  from  councils,  the  mayor  having  vetoed  an  ordinance 
which  had  been  passed  permitting  its  erection;  the  plaintiff  and  his 
builder  admitted  that  they  knew  they  were  erecting  the  building  in 
violation  of  law. 

The  plaintiff  requested  the  court  to  instruct  the  jury:  "That  the 
defendant  acted  wholly  without  authority  of  law  in  tearing  down  the 
building  of  the  plaintiff,  and  he  is  liable  for  the  damage  resulting  from 
his  commands,  and  the  jury  should  find  a  verdict  for  the  plaintiff  for 
the  amount  of  damages  which  they  believed,  according  to  the  evidence, 
he  sustained."  Ansiver.  I  do  not  aflfirm  that  point;  on  the  contrary, 
I  negative  it,  leaving  to  you  the  question  of  nuisance,  or  no  nuisance; 
then  if  no  nuisance,  the  plaintiff  is  entitled  to  any  damage  sustained; 
and  if  nuisance,  if  the  plaintiff  maintained  a  nuisance  there,  then  he  is 
not  entitled  to  any  damages." 

In  the  general  charge  the  judge  said:  "The  first  question  which 
arises  in  this  case  is,  was  or  was  not  this  building,  thus  taken  down  by 
the  mayor,  a  nuisance?  Was  it  such  a  common  peril  to  the  welfare  of 
the  citizens  of  Philadelphia,  and  to  all  who  were  to  assemble  here  and 
visit  the  great  exhibition,  to  the  property  exposed  to  danger,  as  to 


SECT.  II.]  FIELDS   V.   STOKLEY.  639 

amount  to  a  nuisance?  ...  If  you  find  it  to  be  a  nuisance,  then  I 
say  that  the  defendant  must  justify  himself  under  the  fact  that  it  was 
a  nuisance,  and  especially  acting  as  the  head  of  a  great  municipality; 
acting  under  the  order  of  a  judge  of  a  court;  acting  upon  the  present- 
ment of  a  grand  jury,  all  tend  to  show  that  it  was  not  mere  private 
thought  or  feeling,  that  he  was  not  prompted  to  it  by  any  desire  to  do 
any  particular  wrong  to  this  individual.  .  .  .  You  will  look  at  the  whole 
case  carefully,  and  at  the  facts  and  the  law  as  I  have  given  it  to  you, 
and  if  you  find  the  plaintiff  was  maintaining  a  nuisance  there,  then  he 
is  not  entitled  to  recover  at  all,  and  your  verdict  should  be  for  the 
defendant.  If,  on  the  contrary,  there  was  no  nuisance  there,  then  you 
will  give  such  damages  as  the  plaintiff  would  be  entitled  to  recover 
under  the  evidence  and  facts  as  they  have  been  testified  to  here." 

Verdict  and  judgment  for  defendant.  The  plaintiff'  took  this  writ 
of  error,  signing  for  error  (1)  the  refusal  of  the  court  to  affirm  his 
point,  as  above,  and  (2)  "that  the  entire  charge  was  calculated  to 
mislead  the  jury  in  this,  that  a  wooden  building  erected  on  private 
freehold  could  be  a  public  nuisance;  and  that,  without  conviction  on 
indictment,  or  a  decree  of  a  court,  an  individual  who  was  a  mayor 
could  abate  it  at  his  will." 

Sharswood,  C.  J.  It  appears  by  the  record  before  us  that  it  was 
expressly  agreed,  after  the  trial*  had  progressed  some  time,  that  all 
the  facts  set  forth  in  the  special  plea,  not  already  proved,  should  be 
considered  as  having  been  proved.  The  plea,  inter  alia,  avers  that  the 
houses  mentioned  in  the  declaration  and  for  the  removal  of  which  this 
action  was  brought  were  composed  wholly  of  highly  inflammable  and 
combustible  materials,  and  were  insufficiently  provided  with  chimneys 
and  the  usual  and  ordinary  appliances  for  protection  against  fire,  and 
were  so  used  constantly,  night  and  day,  by  drunken  and  disorderly 
persons,  that  the  lives,  health,  and  property  of  citizens  were  greatly 
endangered  and  the  public  safety  imperiled.  The  question  whether 
they  were  a  public  nuisance  was  fairly  submitted  to  the  jury  by  the 
learned  judge  below,  and  the  verdict  of  the  jury  in  favor  of  the  defend-  ^ 
ant  established  that  fact.  Had  the  presentment  by  the  grand  jury 
been  followed  up  by  an  indictment,  trial,  and  conviction  of  the  plaintiff 
below,  the  judgment  thereon  would  have  been  that  the  nuisance  should 
be  abated,  and  would  have  been  a  conclusive  justification  of  the  action 
of  the  defendant.  The  defendant  was  the  mayor  of  the  city,  and  charged 
with  the  conservation  of  the  peace  and  the  protection  of  the  property 
of  the  city.    He  was  the  representative  of  the  city.     It  is  true  that  a  «■  ^.a/  ■  ' 

wooden  building,  though  erected  contrary  to  law,  is  not  per  se  a  public 
nuisance.  But  it  may  become  such  by  the  manner  in  which  it  is  used 
or  allowed  to  be  used.     It  is  true  that  a  private  person  not  specially  ^  i      /i 

aggrieved  cannot  abate  a  public  nuisance,  and  especially  where  a  statute  'j  \^(,JC. 

provides  a  remedy  for  an  offense  created  by  it,  that  must  be  followed.   _] 
It  is  well   settled,  however,  that  a   private  person,  if  specially  ag- 


it 


■\^\jl 


< 


640  FIELDS    V.   STOKLEY.  [CHAP.  V. 

grieved  by  a  public  nuisance,  may  abate  it.  In  Rung  t.  Shoneberger, 
2  Watts,  23,  it  was  held  by  this  court  that  the  erection  of  a  building  upon 
the  public  square  of  a  town  was  a  public  and  not  a  private  offense, 
and  may  be  abated  by  any  one  aggrieved.  In  that  case  the  buildings 
were  removed  by  officers  of  the  town  by  \'irtue  of  the  authority  of  the 
town  council,  and  the  persons  in  possession,  and  who  had  erected  the 
buildings,  had  recovered  in  an  action  of  trespass.  The  judgment, 
however,  was  reversed,  Mr.  Justice  Rogers  saying,  "  A  nuisance,  whether 
public  or  private,  may  be  abated  by  the  party  aggrieved,  so  that  it  is 
done  peaceably  and  without  a  riot.  The  reason  (says  Blackstone,  3 
Com.  5)  why  the  law  allows  this  private  and  summary  method  of 
doing  justice,  is  because  injuries  which  obstruct  or  arrest  such  things 
as  are  of  daily  convenience  and  use,  require  an  immediate  remedy, 
and  cannot  wait  for  the  slow  progress  of  the  ordinary  forms  of  justice." 
The  jury,  under  the  charge  of  the  learned  judge,  has  found  these  build- 
ings to  be  of  that  character.  The  city  of  Philadelphia  was  the  owner 
of  large  and  valuable  property  in  their  neighborhood.  Any  hour  of 
the  day  or  night  they  were  in  danger  of  being  set  on  fire  by  those  who 
frequented  them  uath  the  owner's  permission.  It  is  stated  as  a  fact 
in  the  special  plea,  and  of  course  a  fact  admitted  by  the  agreement, 
that  the  public  safety  was  imperiled.  Notliing  more  was  necessary  to 
justify  the  action  of  the  defendant.  If  the  owner  or  tenant  of  a  powder 
magazine  should  madly  or  wickedly  insist  upon  smoking  a  cigar  on  the 
premises,  can  any  one  doubt  that  a  policeman  or  even  a  neighbor  could 
justify  in  trespass  for  forcibly  ejecting  him  and  his  cigar  from  his  own 
premises?  It  is  true,  that  a  private  person  assuming  to  abate  a  public 
nuisance  takes  upon  himself  the  responsibility  of  pro\'ing  to  the  satis- 
faction of  a  jury,  the  fact  of  nuisance.  The  official  position  of  the  de- 
fendant, as  mayor  of  Philadelphia,  did  not  relieve  him  from  his  per- 
sonal responsibility  in  this  respect.  But  he  has  been  sustained  by  the 
verdict  of  the  jury,  which  is  a  justification  of  his  alleged  trespass.  We 
are  of  opinion  that  this  case  was  properly  submitted  to  the  determina- 
tion of  the  jury,  that  there  was  nothing  in  the  charge  calculated  to 
mislead  them,  and  that  it  would  have  been  manifest  error  if  the  learned 
judge  had  affirmed  the  plaintiff's  point,  and  thereby  in  effect  instructed 
the  jury  to  find  a  verdict  in  his  favor.^ 

Judgment  affirmed. 

'See  also  Jones  r.  Williams,  11  M.  &  W.  176;  Brown  v.  Perkins,  12  Gray.  89; 
Meeker  c.  Van  Rensselaer,  15  Wend.  397.  —  Ed. 


SECT.  II.]  STATE   V.   GUT.  641 


STATE  V.  GUT. 
Supreme  Court  of  Minnesota,  1868. 

[Reported  13  Minn.  341.] 

Wilson,  C.  J.  The  defendant  was  indicted  for  the  murder  of  Charles 
Campbell,  and  having  been  tried,  was  found  guilty,  on  the  31st  day  of 
January,  and  sentenced  on  the  1st  day  of  February  following.^  .  .  , 

It  is  admitted  in  the  bill  of  exceptions  that  the  evidence  on  the 
part  of  the  State  established  the  fact  that,  at  New  Ulm,  in  the  county 
of  Brown,  and  State  of  Minnesota,  on  the  25th  day  of  December, 
1866,  Alexander  Campbell,  the  person  named  in  the  said  indictment, 
and  one  George  Liscome,  were  arrested  at  the  saloon  known  as  the 
National  Hall  saloon,  in  the  said  town  of  New  Ulm,  by  the  sheriff  and 
other  officers  of  the  said  county  of  Brown,  and  taken  to  and  confined 
in  the  jail  of  said  county,  which  said  jail  was  but  a  short  distance  from 
said  saloon.  That  At  the  time  the  said  arrest  was  made  a  report  was 
very  generally  circulated  through  said  town  to  the  effect  that  two  half- 
breeds  had  murdered  John  Spinner.  That  in  about  twenty-five  or 
thirty  minutes  after  the  same  was  first  circulated,  a  large  crowd  of 
over  one  hundred  men,  very  much  excited,  assembled  at  said  jail. 
That  great  noise  and  confusion  prevailed  in  said  crowd,  and  the  pre- 
vailing cry  was,  bring  out  the  halfbreeds,  hang  the  halfbreeds,  out 
with  the  Indians.  That  one  of  the  said  witnesses  for  the  State,  to 
wit,  George  Schneider,  testified  that  the  crowd  called  out  that 
Campbell  was  the  brother  of  the  half  breed  Campbell  whom  the  people 
had  recently  hanged  at  Mankato  for  the  murder  of  white  people. 

That  the  defendant,  John  Gut,  arrived  at  said  jail  after  the  said 
crowd  had  principally  assembled  there,  and  about  the  time  the  said 
crowd  broke  open  the  said  jail  and  brought  out  the  said  Campbell; 
that  the  said  Gut  had  no  knowledge  of  the  purpose  of  said  crowd  in 
assembling  at  said  jail,  until  after  his  arrival  there,  and  all  he  learned 
concerning  the  intention  and  purpose  of  said  crowd  was  from  the  outcry 
of  said  crowd,  and  what  he  saw  after  his  arrival  at  said  jail ;  that  when 
said  Gut  was  reproved  by  the  witness  for  the  stabl)ing  of  the  prisoners, 
he  replied:  These  two  halfbreeds  killed  my  best  friend,  John  Spinner, 
and  I  will  kill  them;  let  me  alone  or  I  will  stab  you!  That  said  crowd 
did  break  open  said  jail,  and  did  take  out  said  Campbell,  and  did  hang 
him  by  the  neck  until  he  was  dead,  and  that  said  John  Gut  did  partici- 
pate in  the  doings  of  said  crowd  by  stabbing  said  Campbell  with  a 
knife,  both  before  and  after  he  was  hanged  by  said  crowd.  That  said 
■Campbell  and  Liscome  before  they  were  arrested  in  said  saloon  were 

^  Only  so  much  of  the  opinion  as  considers  the  defense  discussed  is  given.  —  Ed. 


r 


642  O'BRIEN    V.    CUNARD    STEAMSHIP   CO.  [CHAP.  V. 

dressed  as  follows:  Said  Campbell  had  on  his  head  a  hood  made  of 
dark  blue  cloth,  or  blanket,  such  as  is  worn  by  the  Sioux  Indians. 
That  one  of  said  parties,  either  Campbell  or  LisGome,  had  on  Indian 
moccasins. 

That  both  said  Campbell  and  Liscome  wore  belts  on  the  outside  of 
all  their  clothing,  in  which  belts  were  knife  sheaths,  and  when  seen 
in  said  saloon  by  the  State  witnesses,  they  had  their  knives  in  their 
hands.  .  .  .  The  evidence  offered  to  prove  that  a  state  of  war  existed 
betAveen  the  United  States  and  Sioux  Indians,  and  that  the  State, 
through  its  legal  authorities,  had  offered  a  reward  for  the  killing  of 
any  male  of  that  tribe,  was  properly  rejected.  That  it  is  legal  to  kill 
an  alien  enemy  in  the  heat  and  exercise  of  war,  is  undeniable:  but  to 
kill  such  an  enemy  after  he  has  laid  down  his  arms,  and  especially 
when  he  is  confined  in  prison,  is  murder.  1  Bish.  Cr.  Law,  102;  2  lb., 
668. 

The  evidence  that  war  existed  between  the  Sioux  Indians  and  the 
United  States,  and  that  the  deceased  was  supposed  to  be  a  Sioux 
Indian,  was  therefore  immaterial. 

It  is  not  pretended  that  there  was  a  law  of  our  State  authorizing 
the  killing  of  a  male  of  that  tribe,  and  the  proclamation  or  order  of  any 
officer  of  the  State  could  not  make  that  right  which  is  wrong,  or  legal 
which  is  illegal.  If  such  a  proclamation  or  order  was  made,  and  if  on 
account  thereof  any  ignorant  person  was  misled  into  the  commission 
of  crime,  it  is  for  the  governor  to  determine  whether  that  would  be  a 
proper  case  for  the  exercise  of  executive  clemency. 


O'BRIEN  V.   CUNARD  STEAMSHIP  CO. 
Supreme  Judicial  Court  of  Massachusetts,  1891. 

[Reported  154  Mass.  272.]    • 

Tort,  for  an  assault,  and  for  negligently  vaccinating  the  plaintiff, 
a  steerage  passenger  on  the  steamship  Catalonia.  Trial  in  the  Superior 
Court,  before  Staples,  J.,  who  ruled  that,  upon  the  evidence,  the 
plaintiff  could  not  maintain  the  action,  and  ordered  a  verdict  for  the 
defendant;  and  the  plaintiff  alleged  exceptions.  The  nature  of  the 
evidence  appears  in  the  opinion. 

Knowlton,  J.  This  case  presents  two  questions:  first,  whether 
there  was  any  evidence  to  warrant  the  jury  in  finding  that  the  de- 
fendant, by  any  of  its  servants  or  agents,  committed  an  assault  on 
the  plaintiff;  secondly,  whether  there  was  evidence  on  which  the  jury 
could  have  found  that  the  defendant  was  guilty  of  negligence  towards 
the  plaintiff.  To  sustain  the  first  count,  which  was  for  an  alleged 
assault,  the  plaintiff  relied  on  the  fact  that  the  surgeon  who  was  em- 


SECT.  II.]  O'BRIEN   V.    CUNARD   STEAMSHIP  CO.  643 

ployed  by  the  defendant  vaccinated  her  on  shipboard,  while  she  was 
on  her  passage  from  Queenstown  to  Boston.  On  this  branch  of  the 
case  the  question  is  whether  there  was  any  evidence  that  the  surgeon 
used  force  upon  the  plaintiff  against  her  will.  In  determining  whether 
the  act  was  lawful  or  unlawful,  the  surgeon's  conduct  must  be  con- 
sidered in  connection  with  the  circumstances.  If  the  plaintiff's  be- 
havior was  such  as  to  indicate  consent  on  her  part,  he  was  justified  in 
his  act,  whatever  her  unexpressed  feelings  may  have  been.  In  deter- 
mining whether  she  consented,  he  could  be  guided  only  by  her  overt 
acts  and  the  manifestations  of  her  feelings.  Ford  v.  Ford,  143  Mass. 
577,  578.  McCarthy  v.  Boston  &  Lowell  Railroad,  148  Mass.  550, 
552.  It  is  undisputed  that  at  Boston  there  are  strict  quarantine 
regulations  in  regard  to  the  examination  of  immigrants,  to  see  that 
they  are  protected  from  small-pox  by  vaccination,  and  that  only  those 
persons  who  hold  a  certificate  from  the  medical  officer  of  the  steam- 
ship, stating  that  they  are  so  protected,  are  permitted  to  land  without 
detention  in  quarantine  or  vaccination  by  the  port  physician.  It 
appears  that  the  defendant  is  accustomed  to  have  its  surgeons  vacci- 
nate all  immigrants  who  desire  it,  and  who  are  not  protected  by  pre- 
vious vaccination,  and  give  them  a  certificate  which  is  accepted  at 
quarantine  as  evidence  of  their  protection.  Notices  of  the  regulations 
at  quarantine,  and  of  the  willingness  of  the  ship's  medical  officer  to 
vaccinate  such  as  needed  vaccination,  were  posted  about  the  ship, 
in  various  languages,  and  on  the  day  when  the  operation  was  performed 
the  surgeon  had  a  right  to  presume  that  she  and  the  other  women 
who  were  vaccinated  understood  the  importance  and  purpose  of  vac- 
cination for  those  who  bore  no  marks  to  show  that  they  were  pro- 
tected. By  the  plaintiff's  testimony,  which  in  this  particular  is  un- 
disputed, it  appears  that  about  two  hundred  women  passengers  were 
assembled  below,  and  she  understood  from  conversation  with  them 
that  they  were  to  be  vaccinated ;  that  she  stood  about  fifteen  feet  from 
the  surgeon,  and  saw  them  form  in  a  line  and  pass  in  turn  before  him; 
that  he  "examined  their  arms,  and,  passing  some  of  them  by,  pro- 
ceeded to  vaccinate  those  that  had  no  mark";  that  she  did  not  hear 
him  say  anything  to  any  of  them;  that  upon  being  passed  by  they 
each  received  a  card  and  went  on  deck;  that  when  her  turn  came  she 
showed  him  her  arm,  and  he  looked  at  it  and  said  there  was  no  mark, 
and  that  she  should  be  vaccinated;  that  she  told  him  she  had  been  vac- 
cinated before  and  it  left  no  mark;  "that  he  then  said  nothing,  that  he 
should  vaccinate  her  again";  that  she  held  up  her  arm  to  be  vac-^ 
cinated;  that  no  one  touched  her;  that  she  did  not  tell  him  that  she  did 
not  want  to  be  vaccinated;  and  that  she  took  the  ticket  which  he 
gave  her  certifying  that  he  had  vaccinated  her,  and  used  it  at  quaran- 
tine. She  was  one  of  a  large  number  of  women  who  were  vaccinated 
on  that  occasion,  without,  so  far  as  appears,  a  word  of  objection  from 
any  of  them.     They  all  indicated  by  their  conduct  that  they  desired 


644  SCANLON    V.   WEDGER.  [CHAP.  V* 

to  avail  themselves  of  the  provisions  made  for  their  benefit.  There 
was  nothing  in  the  conduct  of  the  plaintiff  to  indicate  to  the  surgeon 
that  she  did  not  wish  to  obtain  a  card  which  would  save  her  from 
detention  at  quarantine,  and  to  be  vaccinated,  if  necessary,  for  that 
purpose.  Viewing  his  conduct  in  the  light  of  the  circumstances,  it 
was  lawful;  and  there  was  no  evidence  tending  to  show  that  it  was  not. 
The  ruling  of  the  court  on  this  part  of  the  case  was  correct.^ 

Exceptions  overruled. 


SCANLON  V.  WEDGER. 
Supreme  Judicial  Court  of  Massachusetts,  1892. 

[Reported  156  Mass.  462.] 

Allen,  J.  The  several  plaintiffs  were  injured  by  the  explosion  of 
a  bomb  or  shell  during  a  display  of  fireworks  in  Broadway  Square, 
which  was  a  pul)lic  highway  in  Chelsea.  This  display  was  made  by 
the  defendant  Wedger,  who  acted  under  a  license  from  the  mayor 
and  aldermen  of  Chelsea  for  a  display  of  fireworks  in  Broadway  Square 
on  that  evening,  under  Pub.  Sts.  c.  102,  §  55.  A  verdict  was  returned 
for  the  defendant,  and  the  jury  made  a  special  finding  that  the  defend- 
ant in  firing  the  bomb  exercised  reasonable  care.  The  case  comes  to 
us  on  a  report  which  states  that  if,  on  the  facts  contained  therein,  and 
on  said  finding,  the  plaintiffs  are  entitled  to  recover,  the  case  is  to  be 
remitted  to  the  Superior  Court  for  the  assessment  of  damages;  other- 
wise, judgments  are  to  be  entered  for  the  defendant.  It  is  therefore 
to  be  considered  whether  it  appears  affirmatively  that  the  plaintiffs 
were  entitled  to  recover. 

The  plaintiffs  apparently  were  present  at  the  display  of  fireworks 
as  voluntary  spectators,  and  were  of  ordinary  intelligence.  No  fact 
is  stated  in  the  report  to  show  the  contrary,  nor  has  any  suggestion 
to  that  effect  been  made  in  the  argument.  The  plaintiffs  have  not 
rested  their  claims  at  all  upon  the  ground  that  they  were  merely  travel- 
ers upon  the  highway,  or  that  they  were  unaware  of  the  nature  and 
risk  of  the  display.  The  report  says:  "A  considerable  number  of  per- 
sons were  attracted  to  said  square  by  said  meeting,  and  said  bombs 
and  other  fireworks  which  were  being  exploded  there.  ...  A  portion 
of  the  center  of  said  square,  about  forty  by  sixty  feet,  was  roped  off 
by  the  police  of  said  Chelsea,  and  said  bombs  or  shells  were  fired  off 
within  the  space  so  inclosed,  and  no  spectators  were  allowed  to  be 
within  said  inclosure.  .  .  .  The  plaintiffs  were  lawfully  in  said  high- 
way at  the  time  of  the  explosion  of  said  mortar,  and  near  said  ropes, 
and  were  in  the  exercise  of  due  care." 

1  The  remainder  of  the  opinion,  dealing  with  the  question  of  negligence,  is 
omitted.  —  Ed. 


SECT.   II.]  HOWLAND   V.   BLAKE   MANUFACTURING   CO.  645 

The  bombs  or  shells  are  described  in  the  report,  and  they  were  to 
be  thrown  from  mortars  into  the  air,  it  being  intended  that  they  should 
explode  in  the  air  and  display  colored  lights.  They  were  apparently  a 
common  form  of  fireworks,  such  as  has  long  been  in  use. 

The  ground  on  which  the  plaintiffs  place  their  several  cases  is,  that 
the  Pub.  Sts.  c.  102,  §  55,  did  not  authorize  the  mayor  and  aldermen 
of  Chelsea  to  license  the  firing  of  anything  but  rockets,  crackers,  squibs, 
or  serpents,  and  that  therefore  the  act  of  the  defendant  in  firing  bombs 
or  shells  was  unauthorized  and  unlawful.  It  is  not  contended  that 
it  was  at  the  time  supposed,  either  by  the  defendant  or  by  anybody 
else,  that  the  license  was  insufficient  to  warrant  the  display  which  was 
actually  made.  The  licensee  was  the  chairman  of  a  committee  which 
had  a  political  meeting  in  charge,  and  the  defendant  acted  at  the  re- 
quest of  the  committee,  and  was  directed  by  them  as  to  when  and  where 
to  fire  off  the  fireworks. 

Under  this  state  of  things  it  must  be  considered  that  the  plaintiffs 
were  content  to  abide  the  chance  of  personal  injury  not  caused  by 
negligence,  and  that  it  is  immaterial  whether  there  was  or  was  not  a 
valid  license  for  the  display.  If  an  ordinary  traveler  upon  the  high- 
way had  been  injured,  different  reasons  would  be  applicable.  Vos- 
burgh  V.  Moak,  1  Cush.  453.  Jenne  v.  Sutton,  14  Vroom,  257.  Con- 
radt  V.  Clauve,  93  Ind.  476.  But  a  voluntary  spectator,  who  is  present 
merely  for  the  purpose  of  witnessing  the  display,  must  be  held  to  con- 
sent to  it,  and  he  suffers  no  legal  wrong  if  accidentally  injured  without 
negligence  on  the  part  of  any  one,  although  the  show  was  unauthorized. 
He  takes  the  risk.    See  Pollock  on  Torts,  138-144.^ 

In  the  opinion  of  a  majority  of  the  court,  the  entry  must  be. 

Judgments  for  the  defendant. 

Morton,  J.,  dissented. 


HOWLAND  V.  BLAKE  MANUFACTURING  CO. 
Supreme  Judicial  Court  of  Massachusetts,  1892. 

[Reported  156  Mass.  543.] 

Tort,  by  Alfred  H.  Howland  and  George  A.  Ellis,  copartners  doing 
business  as  Howland  and  Ellis,  for  libel. 

The  declaration  alleged  that  the  plaintiffs  were  civil  engineers  and 
contractors,  and  that  the  defendant  published,  circulated,  and  caused 
to  be  published  and  circulated,  a  false  and  malicious  libel  concerning 
the  plaintiffs,  a  copy  whereof  was  annexed,  whereby  the  plaintiffs  were 
greatly  damaged  in  their  business  as  well  as  in  their  reputation,  and 
especially  had  suffered  great  damage  and  loss  of  profits  on  contracts 

'  See  also  Johnson  v.  New  York,  186  N.  Y.  139.  —  Ed. 


646  SHINGLEMEYER   V.   WRIGHT.  [CHAP.  V. 

and  employment  in  their  business  as  civil  engineers  and  contractors 
for  the  building  and  construction  and  superintendence  of  the  con- 
struction of  water  works. 

Trial  in  the  Superior  Court  before  Blodgett,  J. 
John  G.  Berry,  called  as  a  witness  for  the  plaintiffs,  testified  that 
he  was  a  civil  engineer  in  the  employ  of  the  plaintiffs;  that  on  March 
15,  1889,  he  went  to  the  office  of  the  defendant,  and  there  saw  Foran, 
who  gave  him  a  copy  of  the  Maynard  Enterprise  extra,  saying,  "  Read 
it  at  your  leisure,  and  show  it  to  your  water  committee  " ;  that  the  wit- 
ness had  told  Foran  that  he  had  friends  in  Marion,  Ohio,  who  were 
interested  in  the  water  works  which  were  to  be  put  in  there  by  the 
plaintiffs;  that  thereupon  Foran  gave  a  start,  and  said,  "Hold  on  a 
minute,  I  have  got  something  to  show  you  " ;  and  that  Foran  then  went 
to  his  desk,  got  out  the  paper,  and  handed  it  to  him. 

On  cross-examination,  the  witness  testified  that  he  went  there  with 
the  purpose  and  intention  of  getting  one  of  those  papers  if  he  could; 
and  that  he  did  not  tell  Foran  that  he  was  in  the  plaintiffs'  employ.^ 

The  jury  returned  a  verdict  for  the  defendant;  and  the  plaintiffs 
alleged  exceptions. 

Knowlton,  J.  .  .  .  The  jury  were  instructed  that,  "if  the  defend- 
ant gave  a  copy  of  the  libel  to  Berry,  there  having  been  no  previous 
publication  by  the  defendant,  and  Berry  in  procuring  such  copy  acted 
as  the  agent  of  the  plaintiffs,  and  at  their  request,  and  such  publica- 
tion was  procured  with  the  view  to  bringing  action,  the  publication 
was  privileged."  This  was  in  accordance  with  views  expressed  by 
English  judges,  and  was  sound  in  principle.  Rogers  v.  Clifton,  3  Bos. 
&  P.  587,  592.  Duke  of  Brunswick  v.  Harmer,  14  Q.  B.  185.  King 
V.  Waring,  5  Esp.  13.  Smith  v.  Wood,  3  Camp.  323.  Odgers,  Libel 
and  Slander,  229.  If  the  defendant  is  guilty  of  no  wrong  against  the 
plaintiff  except  a  wrong  invited  and  procured  by  the  plaintiff  for  the 
purpose  of  making  it  the  foundation  of  an  action,  it  would  be  most 
unjust  that  the  procurer  of  the  wrongful  act  should  be  permitted  to 
profit  by  it. 

Exceptions  overruled. 


SHINGLEMEYER  v.   WRIGHT. 
Supreme  Court  of  Michigan,  1900. 

[Reported  124  Mich.  230.] 

This  is  a  suit  by  one  Katherina  Shinglemeyer  against  Oliver  A. 
Wright  by  capias  for  an  alleged  slander  claimed  to  have  been  uttered 

'  Only  so  much  of  the  evidence,  record,  and  opinion  as  discusses  the  question  of 
plaintiffs'  consent  is  given.  —  Ed. 


SECT.  II.]  SHINGLEMEYER  V.   WRIGHT.  647 

by  defendant  to  one  Henry,  a  policeman,  upon  the  16th  of  July,  1898, 
and  for  a  false  imprisonment.^ 

Plaintiff  testified  that  .  .  .  she  went  to  [defendant's]  office  in  the 
Chamber  of  Commerce  Building;  that  Oliver  Wright  said,  "Did  you 
bring  my  wheel  back?"  and  that  she  said,  "  I  ain't  got  your  old  wheel"; 
and  he  said,  "Yes,  you  have  stolen  my  wheel,"  and  said  that  he 
could  prove  it.  At  the  time  of  this  conversation  there  was  no  one 
present  besides  plaintiff  and  the  defendant.  She  also  claims  that  he 
stated  that  he  would  have  a  warrant  out  for  her  if  she  did  not  leave  his 
office.  Thereupon  she  went  to  the  telephone,  and  called  up  the  cen- 
tral p)olice  station,  and  asked  them  to  send  over  an  officer.  After  she 
had  called  up  the  police  station  she  left  the  office,  went  down  the  ele- 
vator, and  near  the  door  met  the  policeman  Henry.  She  brought  the 
policeman  back  to  Mr.  Wright's  office,  and  herself  stated  to  the 
policeman  that  Mr.  Wright  accused  her  of  stealing  his  wheel,  and  that 
she  wanted  to  see  whether  he  could  do  so.  The  policeman  went  into 
Mr.  Wright's  private  office. 

Thomas  Henry,  the  officer,  testified  that  when  he  entered  the  office 
he  asked  what  the  trouble  was;  that  the  plaintiff  said  first,  "He 
accuses  me  of  stealing  his  bicycle,  and  says  I  am  a  thief,  and  I  am  going 
to  make  him  prove  it";  that  the  defendant  said  Detectives  High  and 
Larkins  were  looking  for  her,  and  that  he  [defendant]  had  learned  that 
a  woman  had  checked  a  man's  wheel  from  Detroit  to  Toledo  by  the 
Lake  Shore  baggageman.^ 

Long,  J.  In  regard  to  the  statement  by  defendant  in  the  presence 
of  the  officer  Henry,  it  was  not  a  publication  for  which  the  law  gives  a 
remedy.  She  herself  solicited  the  statement,  and  sent  for  the  officer 
for  the  express  purpose  of  having  the  defendant  repeat  the  statement  in 
his  presence.  It  would  not  have  been  stated  to  him  except  by  her  invi- 
tation. She  might  have  left  the  respondent's  office.  She  waited  some 
time  for  the  officer  to  come,  and  then  left,  and,  meeting  the  officer  as 
she  emerged  from  the  building,  came  back  with  him  for  no  other  pur- 
pose than  to  ask  him  to  repeat  the  statement  in  his  presence.  In 
Cristman  v.  Cristman,  36  111.  App.  567,  plaintiff  was  suspected  of  an 
assault  with  intent  to  murder.  The  defendant  suspected  the  plaintiff, 
and  so  stated  to  an  officer.  Plaintiff  took  one  King  with  him,  and  went 
to  defendant's  house.  King  asked  her,  in  the  presence  of  plaintiff, 
if  she  had  any  idea  who  did  it,  to  which  defendant  replied:  "There  is 
only  two  mean  enough  to  do  it,  and  Johnnie  is  one  of  them.  Johnnie 
is  the  only  one  that  would  do  it,  and  he  is  the  one  that  did  do  it." 
Held  that  plaintiff  could  not  recover.  Where  one  received  a  letter 
containing  libelous  statements,  and  himself  read  the  letter  to  others, 
held  that  he  could  not  recover.    Sylvis  v.  Miller,  96  Tenn.  94,  33  S.  W. 

'  Only  so  much  of  the  case  as  deals  with  the  alleged  slander  is  given.  —  Ed. 
2  In  this  statement  of  the  evidence  only  so  much  is  given  as  bears  on  the  alleged 
slander.  —  Ed. 


648  VOSBURG  V.    PUTNEY.  [CHAP.  V, 

921.  There  is  no  diflFerence  in  principle  between  reading  a  letter  to 
another  and  soHciting  a  person  to  make  a  similar  verbal  statement. 
Where  one  sought  from  the  superintendent  of  a  railroad  company 
a  letter  of  recommendation  for  his  friend,  which  letter  was  given,  con- 
taining a  statement  that  the  person  had  left  the  sennce  of  the  company 
during  a  strike,  held  that  this  was  not  publishing  a  libel.  Railroad  Co. 
T.  Delaney,  52  S.  W.  151,  45  L.  R.  A.  600.  The  following  cases  sustain 
the  same  doctrine:  Bank  v.  Bader,  59  Minn.  329,  61  N.  W.  328;  Heller 
V.  Howard,  11  111.  App.  554;  Fonville  v.  McNease,  1  Dud.  (S.  C.)  303; 
King  V.  Waring,  5  Esp.  13;  Smith  v.  Wood,  3  Camp.  323;  Haynes  v. 
Leland,  29  Me.  233.  Plaintiff  repeatedly  testified  that  she  sent  for  the 
policeman  to  see  if  she  did  steal  his  wheel,  and  that  she  was  going  to 
make  him  prove  it.    The  maxim,  Volenti  non  fit  injuria,  applies. 


VOSBURG  V.  PUTNEY. 
Supreme  Court  of  Wisconsin,  1891. 

[Reported  80  Wis.  523.] 

The  action  was  brought  to  recover  damages  for  an  assault  and  bat- 
tery, alleged  to  have  been  committed  by  the  defendant  upon  the  plain- 
tiff on  February  20,  1889.  The  answer  is  a  general  denial.  At  the  date 
of  the  alleged  assault  the  plaintiff  was  a  little  more  than  fourteen  years 
of  age,  and  the  defendant  a  little  less  than  twelve  years  of  age. 

The  injury  complained  of  was  caused  by  a  kick  inflicted  by  de- 
fendant upon  the  leg  of  the  plaintiff,  a  little  below  the  knee.  The  trans- 
action occurred  in  a  schoolroom  in  Waukesha,  during  school  hours, 
both  parties  being  pupils  in  the  school. 

Lyon,  J.^  Had  the  parties  been  upon  the  playgrounds  of  the  school, 
engaged  in  the  usual  boyish  sports,  the  defendant  being  free  from 
malice,  wantonness,  or  negligence,  and  intending  no  harm  to  plaintiff 
in  what  he  did,  we  should  hesitate  to  hold  the  act  of  the  defendant 
unlawful,  or  that  he  could  be  held  liable  in  this  action.  Some  considera- 
tion is  due  to  the  implied  license  of  the  playgrounds.  But  it  appears 
that  the  injury  was  inflicted  in  the  school,  after  it  had  been  called  to 
order  by  the  teacher,  and  after  the  regular  exercises  of  the  school  had 
commenced.  Under  these  circumstances,  no  implied  license  to  do  the 
act  complained  of  existed,  and  such  act  was  a  violation  of  the  order 
and  decorum  of  the  school,  and  necessarily  unlawful.  Hence  we  are 
of  the  opinion  that,  under  the  evidence  and  verdict,  the  action  may  be 
sustained. 

'  Part  only  of  the  opinion  is  given.  —  Ed. 


SECT.  II.]  MARKLEY   V.   WHITMAN.  649 


MARKLEY  v.   WHITMAN. 
Supreme  Court  of  Michigan,  1893. 

[Reported  95  Mich.  236.] 

Long,  J.  Plaintiff  and  defendant  were  both  students  at  the  Buchan- 
nan  High  School.  On  February  7,  1890,  while  the  plaintiff  was  on  his 
way  home  from  school,  the  defendant  and  others  of  the  scholars  were 
engaged  in  what  is  called  a  "rush"  or  "horse  game."  The  practice 
of  the  game  is  to  find  some  one  in  advance,  when  the  others  form  in  a 
line,  each  one  in  the  rear  pushing  the  one  in  advance  of  him,  and  so 
on  through  the  Hne  until  the  one  to  be  "rushed,"  who  knows  nothing 
of  what  is  coming,  is  rushed  upon  by  the  one  in  his  rear,  and  pushed  or 
rushed.  On  the  day  in  question  the  plaintiff,  while  going  towards  home 
on  the  sidewalk,  was  to  be  rushed.  The  defendant  was  in  his  immediate 
rear,  and  engaged  in  the  game.  When  pushed,  he  rushed  upon  the 
plaintiff,  striking  him  with  his  hands  between  the  shoulders  with  such 
violence  that  the  plaintiff  was  thrown  nearly  to  the  ground.  Imme- 
diately thereafter  he  lost  his  voice  above  a  whisper,  and  has  never 
recovered  its  use.  His  neck  was  nearly  fractured,  and  for  several 
months  he  was  compelled  to  take  medical  treatment  in  Chicago.  It 
is  claimed  that  he  suffered  great  pain,  and  has  not  fully  recovered. 
This  action  was  brought  to  recover  for  the  injuries  thus  occasioned. 
On  the  trial  in  the  court  below,  the  plaintiff  had  verdict  and  judgment 
for  $2,500.     Defendant  brings  error. 

The  errors  relied  upon  relate  principally  to  the  charge  of  the  court. 
It  was  claimed  on  the  trial  in  the  court  below : 

1^  That  the  push  against  the  plaintiff  was  not  an  assault,  and 
therefore  not  actionable. 

2.  That  it  was  a  pure  accident. 

3.  That  it  was  not  a  dangerous  game,  and  the  results  which  fol- 
lowed from  the  push  could  not  have  been  anticipated. 

4.  That  the  defendant  only  put  himself  in  a  position  ready  to  be 
pushed  if  the  spirit  of  frolic  should  be  entered  into  by  those  behind 
him,  and  his  rush  upon  the  plaintiff  was  neither  invited  nor  approved. 

5.  That  there  was  no  unlawful  intent  to  injure  the  plaintiff. 

It  is  insisted  that  the  court  below,  in  its  charge,  entirely  ignored  the 
claim  of  the  defendant  made  on  the  trial;  and  also  that  the  plaintiff 
was  one  of  the  school-fellows,  and  stood  in  a  different  position  to  the 
defendant  than  would  a  stranger.  The  court  instructed  the  jury 
substantially  that,  if  the  plaintiff  was  participating  in  the  play,  or  in 
any  way  contributed  to  the  injury,  he  could  not  recover;  that,  to 
entitle  the  plaintiff  to  recover,  he  must  show  by  a  preponderance  of  evi- 
dence that  the  injury  was  occasioned  by  the  push  given  by  the  defend- 


650 


MAEKLEY   V.    WHITMAN, 


[chap.  V. 


ant,  and  that  the  defendant  either  wilfully  pushed  the  plaintiff,  or 
was  voluntarily  engaged  in  the  game,  which  must  be  found  to  be  dan- 
gerous, and  one  reasonably  calculated  to  be  dangerous  to  innocent 
persons  lawfully  traveling  along  the  sidewalk  upon  which  the  play 
was  conducted.  The  court  below  further  instructed  the  jury  as  fol- 
lows: 

"  If  the  game  in  question  was  a  dangerous  one  to  indulge  in  on  the 
street  and  at  the  time  in  question,  and  if  the  defendant  was  voluntarily 
engaged  in  such  play  at  the  time  of  the  accident,  and  if  the  plaintiff 
was  not  participating  in  such  sport,  and  was  not  guilty  of  conduct 
which  in  any  way  contributed  to  the  injury,  but,  on  the  contrary,  was 
lawfully  traveling  on  the  sidewalk,  and  in  the  exercise  of  reasonable 
care,  and  if  the  defendant,  while  so  playing,  pushed  the  plaintiff  and 
injured  him,  he  is  liable;  and  in  such  case  it  is  no  excuse  for  him  to 
say  that  he  himself  was  pushed  against  the  plaintiff  by  some  other  boy." 

This  charge  fully  protected  the  rights  of  the  defendant,  and  was  as 
favorable  to  him  as  the  facts  of  the  case  warranted.  In  fact,  on  the 
trial  it  was  little  in  dispute  that  the  injury  occurred  exactly  as  the 
plaintiff  claimed.  He  was  peaceably  walking  along  the  street,  and  had 
no  intimation  that  he  was  to  be  "rushed."  He  was  not  participating 
in  the  game,  and,  if  his  testimony  is  true,  never  had  taken  part  in  it, 
and  on  that  occasion  was  not  anticipating  that  he  was  the  victim 
selected  to  be  rushed.  It  was  an  assault  upon  him,  and  the  court  cor- 
rectly stated  the  rules  of  law  applicable  to  the  case;  at  least,  the  de- 
fendant had  no  reason  to  complain.  It  is  evident  that  the  defendant 
was  one  of  those  engaged  in  the  game,  which,  upon  a  bare  statement  of 
the  manner  in  which  it  is  to  be  played,  must  be  regarded  as  dangerous. 
He  voluntarily  engaged  in  it,  and  his  conduct  occasioned  the  injury. 
It  was  unlawful  ta  "  rush"  the  plaintiff  under  the  circumstances  shown, 
and  the  defendant  must  be  held  responsbile  for  the  consequences  which 
followed.  It  may  be,  and  probably  is,  true  that  those  taking  part  in 
it  did  not  anticipate  the  injurious  effects  upon  the  plaintiff;  but  that 
does  not  lessen  the  plaintiff's  pain  and  suffering,  or  make  the  act  less 
unlawful.  The  plaintiff,  while  passing  along  the  street,  and  not  en- 
gaged in  the  sport,  had  the  same  right  to  be  protected  from  such  an 
assault  as  a  stranger  would  have  had,  and  the  assault  upon  him  was  as 
unlawful  as  it  would  have  been  upon  a  stranger. 

We  find  no  error  in  the  case,  and  the  judgment  must  be  affirmed, 
with  costs. 

Hooker,  C.  J.,  McGrath  and  Grant,  JJ.,  concurred.  Mont- 
gomery, J.,  did  not  sit.' 


1  See  also  Fitzgerald  v.  Cavin,  110  Mass.  153;  Wartman  v.  Swindell,  54  N.  J.  L. 
589,  25  Atl.  356.  —  Ed. 


SECT.  II.]   OLLET  V.  PITTSBURG,  CINCINNATI,  CHICAGO,  ETC.,  RY.  CO.    651 


OLLET  V.   PITTSBURG,   CINCINNATI,   CHICAGO  &  ST. 
LOUIS  RAILWAY  CO. 

Supreme  Court  of  Pennsylvania,  1902. 

[Reported  201  Pa.  361.] 

Trespass  for  an  alleged  unlawful  imprisonment. 

At  the  trial  the  court  entered  a  compulsory  nonsuit  which  it  sub- 
sequently refused  to  take  off,  Shafer,  J.,  filing  the  following  opinion: 

The  action  is  for  false  imprisonment.  The  plaintiff  was  a  boy 
seventeen  years  of  age,  and  wliile  endeavoring  to  climb  upon  a  freight 
train  of  the  defendant  company  fell  from  it.  The  wheel  ran  over  his 
foot,  crushing  the  front  part  of  it.  He  was  immediately  taken  to  a 
private  house,  the  only  one  in  the  neighborhood,  and  the  crew  of  the 
freight  train  on  which  he  was  injured  having  run  to  Carnegie,  a  dis- 
tance of  one  or  two  miles,  came  back  again  to  the  house  with  the 
engine,  and  finding  the  boy  in  the  house,  and  no  one  present  except  a 
young  woman  who  lived  there,  took  him  on  the  engine  to  Carnegie, 
where  the  company's  physician  was  in  attendance.  An  uncle  of  the 
boy  who  lived  in  Carnegie  was  also  at  the  station  when  the  boy  was 
brought  there,  and  upon  the  advice  of  the  company's  doctor,  and  ac- 
companied by  the  uncle,  he  was  taken  to  the  West  Penn  Hospital, 
where  his  foot  was  afterwards  amputated. 

At  the  time  of  the  accident  one  or  more  other  boys  were  present, 
and  one  of  them  had  gone  to  Carnegie  to  call  the  family  physician  of 
the  boy's  father,  and  another  had  gone  to  the  house  of  the  boy's  father 
to  call  him,  the  distance  to  each  being  a  mile  or  two,  and  the  roads 
being  very  muddy.  When  the  crew  of  the  train  got  to  the  house  they 
were  told  by  the  boy  that  his  family  physician  had  been  sent  for,  and 
that  he  did  not  want  to  go  the  hospital,  but  they  insisted  that  he 
should;  carried  him  out;  put  him  on  the  tender  of  the  engine.  This 
removal  of  the  boy  from  the  house  by  the  railroad  to  Carnegie,  and 
thence  to  the  hospital,  is  the  false  imprisonment  complained  of.         __ 

That  the  crew  of  the  train,  in  doing  what  they  did,  were  endeavoring 
to  act  the  part  of  the  good  Samaritan  is  perfectly  plain,  and  we  do  not 
see  how  a  jury  could  be  allowed  to  find  otherwise  from  the  evidence. 
The  circumstances  certainly  seemed  to  call  for  great  haste,  and  one 
who  endeavors  to  assist  his  neighbor  who  is  in  great  danger  and  distress 
is  certainly  not  liable  for  a  mistake  in  judgment;  nor  does  there  appear 
to  have  been  any  such  mistake  made  in  this  case. 

In  addition,  we  do  not  see  how  the  railroad  company  could  be  held 


652  MOHR   V.   WILLIAMS.  [CHAP.  V^ 

liable  for  a  false  imprisonment  on  these  acts  of  its  employees,  which 
were  certainly  not  done  within  the  scope  of  their  employment,  which 
was  that  of  a  crew  of  a  freight  train. 

The  motion  to  take  off  the  nonsuit  is  refused. 

Per  Curiam.  This  judgment  is  affirmed  on  the  opinion  of  the  court 
below  refusing  to  take  off  the  nonsuit. 


MOHR  V.  WILLIAMS. 
Supreme  Court  of  Minnesota,  1905. 

[Reported  95  Minn.  261.] 

Action  in  the  district  court  for  Ramsey  County  to  recover  $20,000 
damages  for  assault  and  battery  consisting  of  an  alleged  unauthorized 
surgical  operation  performed  by  defendant  upon  plaintiff's  ear.  The 
case  was  tried  before  Olin  B.  Lewis,  J.,  and  a  jury,  which  rendered  a 
verdict  in  favor  of  plaintiff  for  $14,322.50.  From  separate  orders 
granting  a  motion  for  a  new  trial  and  denying  a  motion  for  judgment, 
notwithstanding  the  verdict,  plaintiff  and  defendant  respectively  ap- 
pealed.   Orders  affirmed. 

Brown,  J.  Defendant  is  a  physician  and  surgeon  of  standing  and 
character,  making  disorders  of  the  ear  a  specialty,  and  having  an 
extensive  practice  in  the  city  of  St.  Paul.  He  was  consulted  by  plain- 
tiff, who  complained  to  him  of  trouble  with  her  right  ear,  and,  at  her 
request,  made  an  examination  of  that  organ  for  the  purpose  of  ascer- 
taining its  condition.  He  also  at  the  same  time  examined  her  left  ear, 
but,  owing  to  foreign  substances  therein,  was  unable  to  make  a  full 
and  complete  diagnosis  at  that  time.  The  examination  of  her  right 
ear  disclosed  a  large  perforation  in  the  lower  portion  of  the  drum 
membrane,  and  a  large  polyp  in  the  middle  ear,  which  indicated  that 
some  of  the  small  bones  of  the  middle  ear  (ossicles)  were  probably  dis- 
eased. He  informed  plaintiff  of  the  result  of  his  examination,  and 
advised  an  operation  for  the  purpose  of  removing  the  polyp  and  dis- 
eased ossicles.  After  consultation  with  her  family  physician,  and  one 
or  two  further  consultations  with  defendant,  plaintiff  decided  to  sub- 
mit to  the  proposed  operation.  She  was  not  informed  that  her  left 
ear  was  in  any  way  diseased,  and  understood  that  the  necessity  for 
an  operation  applied  to  her  right  ear  only.  She  repaired  to  the  hospital, 
and  was  placed  under  the  influence  of  ansesthetics ;  and,  after  being 
made  unconscious,  defendant  made  a  thorough  examination  of  her 
left  ear,  and  found  it  in  a  more  serious  condition  than  her  right  one. 
A  small  perforation  was  discovered  high  up  in  the  drum  membrane, 


SECT.  II.]  MOHR   V.   WILLIAMS.  653 

hooded,  and  with  granulated  edges,  and  the  bone  of  the  inner  wall  of 
the  middle  ear  was  diseased  and  dead.  He  called  this  discovery  to  the 
attention  of  Dr.  Davis  —  plaintiff's  family  physician,  who  attended  the 
operation  at  her  request  —  who  also  examined  the  ear  and  confirmed 
defendant  in  his  diagnosis.  Defendant  also  further  examined  the  right 
ear,  and  found  its  condition  less  serious  than  expected,  and  finally  con- 
cluded that  the  left,  instead  of  the  right,  should  be  operated  upon, 
devoting  to  the  right  ear  other  treatment.  He  then  performed  the 
operation  of  ossiculectomy  on  plaintiff's  left  ear,  remo\'ing  a  portion 
of  the  drum  membrane,  and  scraping  away  the  diseased  portion  of  the 
inner  wall  of  the  ear.  The  operation  was  in  every  way  successful  and 
skillfully  performed.  It  is  claimed  by  plaintiff  that  the  operation 
greatly  impaired  her  hearing,  seriously  injured  her  person,  and,  not  hav- 
ing been  consented  to  by  her,  was  wrongful  and  unlawful,  constituting 
an  assault  and  battery;  and  she  brought  this  action  to  recover  damages 
therefor. 

The  trial  in  the  court  below  resulted  in  a  verdict  for  plaintiff  for 
$14,322.50.  Defendant  thereafter  moved  the  court  for  judgment  not- 
withstanding the  verdict,  on  the  ground  that,  on  the  evidence  pre- 
sented, plaintiff  was  not  entitled  to  recover,  or,  if  that  relief  was  denied, 
for  a  new  trial  on  the  ground,  among  others,  that  the  verdict  was  ex- 
cessive, appearing  to  have  been  given  under  the  influence  of  passion 
and  prejudice.^ 

"We  come  then  to  a  consideration  of  the  questions  presented  by 
defendant's  appeal  from  the  order  denying  his  motion  for  judgment 
notwithstanding  the  verdict.  It  is  contended  that  final  judgment 
should  be  ordered  in  his  favor  for  the  following  reasons:  (a)  That  it 
appears  from  the  evidence  received  on  the  trial  that  plaintiff  consented 
to  the  operation  on  her  left  ear.  (b)  If  the  court  shall  find  that  no  such 
consent  was  given,  that,  under  the  circumstances  disclosed  by  the 
record,  no  consent  was  necessary,  (c)  That,  under  the  facts  disclosed, 
an  action  for  assault  and  battery  will  not  lie,  it  appearing  conclusively, 
as  counsel  urge,  that  there  is  a  total  lack  of  evidence  showing  or  tend- 
ing to  show  malice  or  an  evil  intent  on  the  part  of  defendant,  or  that 
the  operation  was  negligently  performed. 

We  shall  consider  first  the  question  whether,  under  the  circumstances 
shown  in  the  record,  the  consent  of  plaintiff  to  the  operation  was 
necessary.  If,  under  the  particular  facts  of  this  case,  such  consent 
was  unnecessary,  no  recovery  can  be  had,  for  the  evidence  fairly  shows 
that  the  operation  complained  of  was  skillfully  performed  and  of  a 
generally  beneficial  nature.  But  if  the  consent  of  plaintiff  was  neces- 
sary, then  the  further  questions  presented  become  important.  This 
particular  question  is  new  in  this  State.  At  least,  no  case  has  been 
-called  to  our  attention  wherein  it  has  been  discussed  or  decided,  and 
very  few  cases  are  cited  from  other  courts.     We  have  given  it  very 

^ ,  So  much  of  the  opiaioo  as  discusses  the  question  of  a  new  trial  is  omitted.  —  Ed. 


654  MOHR   V.    WILLIAMS.  [CHAP.  V. 

deliberate  consideration,  and  are  unable  to  concur  with  counsel  for 
defendant  in  their  contention  that  the  consent  of  plaintiff  was  un- 
necessary. 

The  evidence  tends  to  show  that,  upon  the  first  examination  of 
plaintiff,  defendant  pronounced  the  left  ear  in  good  condition,  and  that, 
at  the  time  plaintiff  repaired  to  the  hospital  to  submit  to  the  operation 
on  her  right  ear,  she  was  under  the  impression  that  no  difficulty  ex- 
isted as  to  the  left.  In  fact,  she  testified  that  she  had  not  previously 
experienced  any  trouble  with  that  organ.  It  cannot  be  doubted  that 
ordinarily  the  patient  must  be  consulted,  and  his  consent  given,  before 
a  physician  may  operate  upon  him. 

It  was  said  in  the  case  of  Pratt  v.  Da\as,  37  Chicago  Leg.  News, 
213,  referred  to  and  commented  on  in  60  Cent.  Law  J.,  452:  "Under  a 
free  government,  at  least,  the  free  citizen's  first  and  greatest  right, 
which  underlies  all  others  —  the  right  to  the  in\aolability  of  his  per- 
son; in  other  words,  the  right  to  himself  —  is  the  subject  of  universal 
acquiescence,  and  this  right  necessarily  forbids  a  physician  or  surgeon, 
however  skillful  or  eminent,  who  has  been  asked  to  examine,  diagnose, 
ad^^se,  and  prescribe  (which  are  at  least  necessary  first  steps  in  treat- 
ment and  care),  to  ^^olate,  without  permission,  the  bodily  integrity  of 
his  patient  by  a  major  or  capital  operation,  placing  him  under  an 
anaesthetic  for  that  purpose,  and  operating  upon  him  without  his 
consent  or  knowledge." 

1  Kinkead  Torts,  §  375,  states  the  general  rule  on  this  subject  as 
follows:  "The  patient  must  be  the  final  arbiter  as  to  whether  he  shall 
take  his  chances  with  the  operation,  or  take  his  chances  of  living  with- 
out it.  Such  is  the  natural  right  of  the  indi\'idual,  which  the  law 
recognizes  as  a  legal  right.  Consent,  therefore,  of  an  indi\adual,  must 
be  either  expressly  or  impliedly  given  before  a  surgeon  may  have  the 
right  to  operate."  There  is  logic  in  the  principle  thus  stated,  for  in  all 
other  trades,  professions,  or  occupations  contracts  are  entered  into  by 
the  mutual  agreement  of  the  interested  parties,  and  are  required  to 
be  performed  in  accordance  with  their  letter  and  spirit.  No  reason 
occurs  to  us  why  the  same  rule  should  not  apply  between  physician  and 
patient.  If  the  physician  ad\ases  his  patient  to  submit  to  a  particular 
operation,  and  the  patient  weighs  the  dangers  and  risks  incident  to  its 
performance,  and  finally  consents,  he  thereby,  in  effect,  enters  into  a 
contract  authorizing  his  physician  to  operate  to  the  extent  of  the  con- 
sent given,  but  no  further. 

It  is  not,  however,  contended  by  defendant  that  under  ordinary  cir- 
cumstances consent  is  unnecessary,  but  that,  under  the  particular  cir- 
cumstances of  this  case,  consent  was  implied ;  that  it  was  an  emergency 
case,  such  as  to  authorize  the  operation  without  express  consent  or 
permission.  The  medical  profession  has  made  signal  progress  in  solv- 
ing the  problems  of  health  and  disease,  and  they  may  justly  point  with 
pride  to  the  advancements  made  in  supplementing  nature  and  correct- 


(o/VsKKhAL 


SECT.  II.]  MOHR    V.   WILLIAMS.  655 

ing  deformities,  and  relieving  pain  and  suffering.  The  physician  im- 
pHedly  contracts  that  he  possesses,  and  will  exercise  in  the  treatment 
of  patients,  skill  and  learning,  and  that  he  will  exercise  reasonable  care 
and  exert  his  best  judgment  to  bring  about  favorable  results.  The 
methods  of  treatment  are  committed  almost  exclusively  to  his  judg- 
ment, but  we  are  aware  of  no  rule  or  principle  of  law  which  would 
extend  to  him  free  license  respecting  surgical  operations.  Reasonable 
latitude  must,  however,  be  allowed  the  physician  in  a  particular  case; 
and  we  would  not  lay  down  any  rule  which  would  unreasonably  inter-  ^  . 

fere  with  the  exercise  of  his  discretion,  or  prevent  him  from  taking  j  '\]\,'jJ~Ji 
such  measures  as  his  judgment  dictated  for  the  welfare  of  the  patient 
in  a  case  of  emergency.  If  a  person  should  be  injured  to  the  extent 
of  rendering  him  unconscious,  and  his  injuries  were  of  such  a  nature 
as  to  require  prompt  surgical  attention,  a  physician  called  to  attend  him 
would. be  justified  in  applying  such  medical  or  surgical  treatment  as 
might  reasonably  be  necessary  for  the  preservation  of  his  life  or  limb, 
and  consent  on  the  part  of  the  injured  person  would  be  implied.  And 
again,  if,  in  the  course  of  an  operation  to  which  the  patient  consented, 
the  physician  should  discover  conditions  not  anticipated  before  the 
operation  was  conunenced,  and  which,  if  not  removed,  would  endanger 
the  life  or  health  of  the  patient,  he  would,  though  no  express  consent 
was  obtained  or  given,  be  justified  in  extending  the  operation  to  remove 
and  overcome  them. 

But  such  is  not  the  case  at  bar.  The  diseased  condition  of  plaintiff's 
left  ear  was  not  discovered  in  the  course  of  an  operation  on  the  right 
which  was  authorized,  but  upon  an  independent  examination  of  that 
organ,  made  after  the  authorized  operation  was  found  unnecessary. 
Nor  is  the  evndence  such  as  to  justify  the  court  in  holding,  as  a  matter 
of  law,  that  it  was  such  an  affection  as  would  result  immediately  in 
the  serious  injury  of  plaintiff,  or  such  an  emergency  as  to  justify  pro- 
ceeding without  her  consent.  She  had  experienced  no  particular  dif- 
ficulty with  that  ear,  and  the  questions  as  to  when  its  diseased  condition 
would  become  alarming  or  fatal,  and  whether  there  was  an  immediate 
necessity  for  an  operation,  were,  under  the  evidence,  questions  of  fact 
for  the  jury. 

The  contention  of  defendant  that  the  operation  was  consented  to 
by  plaintiff  is  not  sustained  by  the  evidence.  At  least,  the  e\'idence 
was  such  as  to  take  the  question  to  the  jury.  This  contention  is  based 
upon  the  fact  that  she  was  represented  on  the  occasion  in  question  by 
her  family  physician;  that  the  condition  of  her  left  ear  was  made 
known  to  him,  and  the  propriety  of  an  operation  thereon  suggested, 
to  which  he  made  no  objection.  It  is  urged  that  by  his  conduct  he 
assented  to  it,  and  that  plaintiff  was  bound  thereby.  It  is  not  claimed 
that  he  gave  his  express  consent.  It  is  not  disputed  but  that  the 
family  physician  of  plaintiff  was  present  on  the  occasion  of  the  opera- 
tion, and  at  her  request.    But  the  purpose  of  his  presence  was  not  that 


656  MOHR   V.    WILLIAMS.  [CHAP.   V, 

he  might  participate  in  the  operation,  nor  does  it  appear  that  he  was 
authorized  to  consent  to  any  change  in  the  one  originally  proposed  to 
be  made.  Plaintiff  was  naturally  nervous  and  fearful  of  the  conse- 
quences of  being  placed  under  the  influence  of  anaesthetics,  and  the 
presence  of  her  family  physician  was  requested  under  the  impression 
that  it  would  allay  and  calm  her  fears.  The  e\idence  made  the  question 
one  of  fact  for  the  jury  to  determine. 

The  last  contention  of  defendant  is  that  the  act  complained  of  did 
not  amount  to  an  assault  and  battery.  This  is  based  upon  the  theory 
that,  as  plaintiff's  left  ear  was  in  fact  diseased,  in  a  condition  dangerous 
and  threatening  to  her  health,  the  operation  was  necessary,  and,  having 
been  skillfully  performed  at  a  time  when  plaintiff  had  requested  a  like 
operation  on  the  other  ear,  the  charge  of  assault  and  battery  cannot  be 
sustained;  that,  in  \'iew  of  these  conditions,  and  the  claim  that  there 
was  no  negligence  on  the  part  of  defendant,  and  an  entire  absence  of 
any  evidence  tending  to  show  an  evil  intent,  the  court  should  say,  as  a 
matter  of  law,  that  no  assault  and  battery  was  committed,  even  though 
she  did  not  consent  to  the  operation.  In  other  words,  that  the  absence 
of  a  showing  that  defendant  was  actuated  by  a  WTongful  intent ,  or 
guilty  of  negligence,  relieves  the  act  of  defendant  from  the  charge  of 
an  unlawful  assault  and  battery. 

We  are  unable  to  reach  that  conclusion,  though  the  contention  is  not 
wnthout  merit.  It  would  seem  to  follow  from  what  has  been  said  on 
the  other  features  of  the  case  that  the  act  of  defendant  amounted  at 
least  to  a  technical  assault  and  battery.  If  the  operation  was  performed 
without  plaintiff's  consent,  and  the  circumstances  were  not  such  as 
to  justify  its  performance  without,  it  was  \VTongful;  and,  if  it  was 
wrongful,  it  was  unlawful.  As  remarked  in  1  Jaggard,  Torts,  437, 
every  person  has  a  right  to  complete  immunity  of  his  person  from 
physical  interference  of  others,  except  in  so  far  as  contact  may  be 
necessary  under  the  general  doctrine  of  privilege;  and  any  unlawful 
or  unauthorized  touching  of  the  person  of  another,  except  it  be  in  the 
spirit  of  pleasantry,  constitutes  an  assault  and  battery.  In  the  case  at 
bar,  as  we  have  already  seen,  the  question  whether  defendant's  act 
in  performing  the  operation  upon  plaintiff  was  authorized  was  a  ques- 
tion for  the  jury  to  determine.  If  it  was  unauthorized,  then  it  was, 
within  what  we  have  said,  unlawful.  It  was  a  %'iolent  assault,  not  a 
mere  pleasantry;  and,  even  though  no  negligence  is  shown,  it  was 
wrongful  and  unlawful.  The  case  is  unlike  a  criminal  prosecution 
for  assault  and  battery,  for  there  an  unlawful  intent  must  be  shown. 
But  that  rule  does  not  apply  to  a  civil  action,  to  maintain  which  it  is 
sufficient  to  show  that  the  assault  complained  of  was  wrongful  and  un- 
lawful or  the  result  of  negligence.  1  Addison,  Torts,  689;  Lander  v. 
Seaver,  32  Vt.  114;  Vosburg  v.  Putney,  80  Wis.  523,  50  N.  W.  403. 

The  amount  of  plaintiff's  recovery,  if  she  is  entitled  to  recover  at 
all,  must  depend  upon  the  character  and  extent  of  the  injury  inflicted 


SECT.  II.]  BARKER    V.   WELSH.  657 

upon  her,  in  determining  which  the  nature  of  the  malady  intended  to 
be  healed  and  the  beneficial  nature  of  the  operation  should  be  taken 
into  consideration,  as  well  as  the  good  faith  of  the  defendant.^ 

Orders  affirmed. 


BARKER  V.  WELSH. 
Supreme  Court  of  Michigan,  1906. 

[Reported  144  Mich.  632.] 

Moore,  J.  Stephen  Bakker  died  upon  the  operating  table  at  a 
hospital  in  Grand  Rapids,  while  defendant  Apted  was  administering 
to  him  chloroform  preparatory  to  the  removal  of  a  tumor  by  the  de- 
fendant Welsh.  The  plaintiff  is  the  father  of  the  deceased,  and,  after 
being  appointed  administrator  of  the  estate  of  deceased,  brought  this 
suit,  his  counsel  stating  upon  the  trial  that  his  claim  was  under  what 
is  known  by  the  lawyers  and  the  courts  as  the  "Death  Act."  The 
trial  judge  directed  a  verdict  in  favor  of  the  defendants.  The  case  is 
brought  here  by  writ  of  error. 

Stephen  Bakker  was  seventeen  years  old.  He  lived  with  his  father  on  a 
farm.  He  was  a  large,  healthy-appearing  person.  He  had  a  tumor  upon 
his  left  ear  about  the  size  of  a  dove's  egg.  Some  time  before  his  death 
he  had  received  treatment,  and  the  tumor  nearly  disappeared;  but 
prior  to  the  middle  of  February,  1904,  it  reappeared,  and  he  came  to 
Grand  Rapids  to  consult  some  physician  about  it.  He  had  an  aunt 
about  sixty  years  old  and  two  adult  sisters  li\ang  in  Grand  Rapids,  with 
whom  he  went  to  the  office  of  the  defendant  Welsh,  who  was  a  special- 
ist and  had  practiced  medicine  and  surgery  for  a  long  time.  After  an  ex- 
amination he  was  told  it  would  be  necessary  to  have  a  microscopic 
examination  made  to  determine  the  character  of  the  growth,  and  he 
was  sent  to  Dr.  Williams,  another  specialist,  who  made  an  incision  and 
obtained  a  specimen  from  the  tumor,  and  young  Bakker  returned  to 
his  father's.  On  the  following  Saturday  or  Sunday  he  again  went  to  the 
oflfice  of  Dr.  Welsh,  accompanied  by  at  least  one  of  his  sisters,  and  was 
informed  of  the  report  made  by  Dr.  Williams,  and  was  told  it  would  be 
best  to  have  the  tumor  removed  by  a  surgical  operation  at  the  hospital. 

The  testimony  is  somewhat  conflicting  as  to  what  was  said.  The 
sister  claims  Stephen  objected  to  taking  an  anaesthetic,  and  was  told 
there  was  no  danger.  The  doctor  says  that  he  told  him  there  was  al- 
ways some  danger  in  taking  an  anaesthetic,  but  that  he  ad\'ised  him  to 
have  the  operation  performed.  On  Tuesday  afternoon  Stephen,  with 
his  aunt  and  at  least  one  sister,  went  again  to  the  office  of  Dr.  Welsh, 

»  See  also  Pratt  v.  Davis,  224  111.  300,  79  N.  E.  562;  SchloendorfF  r.  Society  of 
New  York  Hospital,  211  N.  Y.  125,  105  N.  E.  92.  —  Ed. 


658  BARKER    V.    WELSH.  [CIIAP.  V. 

and  was  sent  from  there  to  the  hospital,  where  they  all  understood  an 
operation  should  be  performed  the  following  day.  In  the  meantime 
Dr.  Welsh  had  arranged  with  Dr.  Apted,  an  expert  in  the  administra- 
tion of  anaesthetics,  to  administer  the  chloroform.  A  careful  exami- 
nation of  the  heart  and  lungs  of  the  young  man  was  made.  They 
appeared  to  be  normal,  and  in  the  presence  of  the  hospital  nurse  and 
the  doctors,  with  the  usual  appliances  for  successful  operations  at 
hand,  young  Bakker  was  put  upon  the  table.  Dr.  Apted  began  to  ad- 
minister chloroform  by  means  of  the  mask  and  drop  method,  and  had 
administered  about  one-third  of  an  ounce,  taking  from  seven  to  ten 
minutes  in  which  to  do  it,  and  Dr.  Welsh  was  just  about  to  commence 
the  operation,  when  suddenly  the  heart  of  the  patient  stopped  beat- 
ing. Every  means  known  to  the  profession  was  used  to  reinve  the 
patient,  but  he  was  already  dead.  The  record  shows  the  father  did  not 
know  an  operation  was  to  be  performed.  There  were  two  counts  in 
Vy    '  the  declaration.    Stripped  of  legal  verbiage,  the  first  count  stated  that 

Stephen  Bakker  was  a  minor  and  it  was  known  to  the  defendant  Welsh 
he  was  a  minor,  and  that  it  was  Dr.  Welsh's  duty  to  inform  the  father 
and  get  his  consent  before  entering  upon  this  operation.  The  second 
count  charges  what  is  known  as  malpractice  or  want  of  skill  in  the 
(L/XjL^yj  operation,  and  that  young  Bakker  died  by  reason  of  an  improper  ad- 

'  '  '  ministration  of  an  anaesthetic.    The  record,  instead  of  disclosing  want  of 

skill  in  the  operation,  shows  quite  the  contrary.  We  have  no  hesi- 
tancy in  saving  the  trial  judge  was  quite  right  on  so  saying  when  he 
directed  a  verdict. 

We  then  come  to  the  question:  Are  defendants  liable  in  this  action 
because  they  engaged  in  this  operation  without  obtaining  the  consent 
of  the  father?  Counsel  for  the  plaintiff  are  very  frank  with  the  court, 
and  say  in  their  brief : 

"We  are  unable  to  aid  the  court  by  reference  to  any  decisions  in 
point.  We  have  devoted  much  time  and  research  to  this  interesting 
question,  but  have  been  unable  to  find  any  decisions  of  a  higher  court 
either  supporting  or  opposing  the  plaintiff's  contention,  and  we  will 
therefore  have  to  be  content  by  calling  the  court's  attention  to  such 
general  reasoning  as  leads  us  to  take  the  \dew  herein  contended  for." 
They  then  argue  at  length,  and  with  a  good  deal  of  force,  that,  as 
the  father  is  the  natural  guardian  of  the  child,  and  is  entitled  to  his 
custody  and  his  serx-ices,  he  cannot  be  deprived  of  them  without  his 
consent.     We  quote: 

"We  contend  that  it  is  wrong  in  every  sense,  except  in  cases  of 
emergency,  for  a  physician  and  surgeon  to  enter  upon  a  dangerous 
operation,  or,  as  in  this  case,  the  administration  of  an  anaesthetic,  con- 
ceded to  be  always  accompanied  with  danger  that  death  may  result, 
without  the  knowledge  and  consent  of  the  parent  or  guardian.  •  It  is 
against  public  policy  and  the  sacred  rights  we  have  in  our  children  that 
surgeons  should  take  them  in  charge  without  our  knowledge  and  send 


^    O-f   ilfc/Al; 


/r 


SECT.  III.]  CAMPBELL   V.    RACE.  659 

to  US  a  corpse  as  the  first  notice  or  intimation  of  their  relation  to  the 
case." 

On  the  part  of  defendants  it  is  contended: 

1.  Consent  of  the  father  was  unnecessary. 

2.  The  lack  of  consent  was  not  the  cause  of  the  boy's  death,  hence 
not  actionable. 

3.  That  if  it  were,  the  action  does  not  survive  under  the  death  act. 

4.  That  the  action,  if  any,  is  in  the  father,  not  in  the  administrator. 
We  do  not  think  it  necessary  to  a  disposition  of  the  case  to  decide 

all  of  the  defenses  interposed  by  the  defendant.  The  record  shows  a 
young  fellow  almost  grown  into  manhood,  who  has  been  for  a  consid- 
erable period  of  time,  while  lix'ing  with  his  father,  afflicted  with  a 
tumor.  He  has  attempted,  while  at  home,  to  have  it  removed  by  ab- 
sorption. It  does  disappear,  but  after  a  time  it  reappears.  He  goes  up 
to  a  large  city,  and  with  an  aunt  and  two  sisters,  all  adults,  submits  to 
examination,  receives  some  advice,  and  goes  back  to  his  father  with 
an  agreement  to  return  later  to  receive  the  report  of  the  expert  who  is 
to  make  the  microscopic  examination.  He  returns  accordingly,  and, 
with  at  least  some  of  his  adult  relatives,  arranges  to  have  a  surgical 
operation  of  a  not  very  dangerous  character  performed.  Preparations 
are  made  for  its  performance.  There  is  nothing  in  the  record  to  indi- 
cate that,  if  the  consent  of  the  father  had  been  asked,  it  would  not 
have  been  freely  given.  There  is  nothing  in  the  record  to  indicate  to 
the  doctors,  before  entering  upon  the  operation,  that  the  father  did 
not  approve  of  his  son's  going  with  his  aunt  and  adult  sisters,  and  con- 
sulting a  physician  as  to  his  ailment,  and  following  his  advice.  We 
think  it  Avould  be  altogether  too  harsh  a  rule  to  say  that,  under  the 
circumstances  disclosed  by  this  record,  in  a  suit  under  the  statute 
declared  upon,  the  defendants  should  be  held  liable  because  they  did 
not  obtain  the  consent  of  the  father  to  the  administration  of  the 
anaesthetic. 

Judgment  is  affirmed 
McAlvay,  Geant,  Ostrander,  and  Hooker,  JJ.,  concurred. 


SECTION   III. 

Privilege  to  Act. 

CAMPBELL  V.   RACE. 
Supreme  Judicial  Court  of  Massachusetts,  1852. 

[Reported  7  Cusk.  408.] 

This  was  an  action  of  trespass  for  breaking  and  entering  the  plain- 
tiff's close  in  the  town  of  Mount  Washington,  and  was  tried  in  the 
court  of  common  pleas,  before  Byington,  J.     The  defendant  pleaded 


660  CAMPBELL    V.   RACE.  [CHAP.  V. 

the  general  issue,  and  specified  in  defense  a  right  of  way  of  necessity, 
resulting  from  the  impassable  state  of  the  adjoining  highway,  by  ob- 
structions with  snow. 

The  defendant  introduced  evidence  that  at  the  time  when  the  tres- 
pass was  alleged  to  have  been  committed  he  was  traveling  with  his 
team  on  a  highway  running  east  and  west,  which  led  to  and  intersected 
a  highway  running  north  and  south,  which  latter  highway  led  to  and 
intersected  another  highway,  on  which  the  defendant  had  occasion  to  go 
with  his  team;  and  the  usual,  proper,  and  only  mode  of  getting  on  which, 
by  a  highway,  was  by  passing  over  the  two  highways  first  named, 
when  they  were  in  a  condition  fit  for  travel;  but  at  the  time  of  the 
alleged  trespass,  they  were  both  obstructed,  and  rendered  impassable 
by  snow-drifts;  because  of  which  obstructions,  the  defendant  turned 
out  of  the  first  highway  with  his  team,  at  a  place  where  it  was  rendered 
impassable  as  aforesaid,  and  passed  over  the  adjoining  fields  of  the 
plaintiff,  doing  no  unnecessary  damage,  and  returned  into  the  second 
liighway,  as  soon  as  he  had  passed  the  obstructions  which  rendered 
both  impassable.  And  he  contended,  that  the  highways  being  thus 
rendered  impassable,  he  had  a  way  of  necessity  over  the  plaintiff's  ad- 
joining fields,  or  that  his  so  passing  was  excusable,  and  not  a  trespass. 

But  the  judge  ruled,  that  these  facts  constituted  no  defense  to  the 
action;  and  a  verdict  having  been  returned  accordingly  for  the  plain- 
tiff, the  defendant  alleged  exceptions. 

BiGELOW,  J.  It  is  not  controverted  by  the  counsel  for  the  plaintiff, 
that  the  rule  of  law  is  well  settled  in  England,  that  where  a  liighway  be- 
comes obstructed  and  impassable  from  temporary  causes,  a  traveler 
has  a  right  to  go  extra  viam  upon  adjoining  lands,  without  being  guilty 
of  trespass.  The  rule  is  so  laid  down  in  the  elementary  books.  2  Bl. 
Com.,  36;  Woolrych  on  Ways,  50,  51 ;  3  Cruise  Dig.,  89;  Wellbeloved  on 
Ways,  38;  and  it  is  fully  supported  by  the  adjudged  cases.  Henn's 
Case,  W.  Jones,  296;    3  Salk.,  182;    1  Saund.,  323,  note  3;    Absor  v. 

French,  2  Show.  28;    Young  v.  ,  1  Ld.  Raym.  725;    Taylor  v. 

Whitehead,  2  Doug.  745;  Bullard  v.  Harrison,  4  M.  &  S.  387,  393. 
Such  being  the  admitted  rule  of  law,  as  settled  by  the  English  authori- 
ties, it  was  urged  in  behalf  of  the  plaintiff  in  the  present  case,  that  it 
had  never  been  recognized  or  sustained  by  American  authors  or  cases. 
But  we  do  not  find  such  to  be  the  fact.  On  the  contrary,  Mr.  Dane, 
whose  great  learning  and  familiar  acquaintance  with  the  principles  of 
the  common  law,  and  their  practical  application  at  an  early  period  in 
this  commonwealth,  entitle  his  opinion  to  very  great  weight,  adopts 
the  rule,  as  declared  in  the  leading  case  of  Taylor  v.  Whitehead,  uhi 
supra,  which  he  says  "is  the  latest  on  the  point,  and  settles  the  law." 
3  Dane  Ab.,  258.  And  so  Chancellor  Kent  states  the  rule.  3  Kent  Com., 
424.  We  are  not  aware  of  any  case  in  which  the  question  has  been  dis- 
tinctly raised  and  adjudicated  in  this  country;  but  there  are  several 
decisions  in  New  York,  in  which  the  rule  has  been  incidentally  recog- 


SECT.  III.]  CAMPBELL   V.   RACE.  661 

nized  and  treated  as  well-settled  law.  Holmes  v.  Seely,  19  Wend.  507; 
Williams  v.  Safford,  7  Barb.  309;  Newkirk  v.  Sabler,  9  Barb.  652, 
These  authorities  would  seem  to  be  quite  sufficient  to  justify  us  in  the 
recognition  of  the  rule.  But  the  rule  itself  is  founded  on  the  established 
principles  of  the  common  law,  and  is  in  accordance  with  the  fixed  and 
uniform  usage  of  the  community.  Indeed,  one  of  the  strongest  argu- 
ments in  support  of  it  is,  that  it  has  always  been  practiced  upon  and 
acquiesced  in,  without  objection,  throughout  the  New  England  States. 
This  accounts  satisfactorily  for  the  absence  of  any  adjudication  upon 
the  question,  in  our  courts,  and  is  a  sufficient  answer  to  the  objection 
upon  this  ground,  which  was  urged  upon  us  by  the  learned  counsel  for 
the  plaintiff.  When  a  right  has  been  long  claimed  and  exercised,  with- 
out denial  or  objection,  a  strong  presumption  is  raised,  that  the  right 
is  well  founded. 

The  plaintiff's  counsel  is  under  a  misapprehension  in  supposing  that 
the  authorities  in  support  of  the  rule  rest  upon  any  peculiar  or  excep- 
tional principle  of  law.  They  are  based  upon  the  familiar  and  well- 
settled  doctrine,  that  to  justify  or  excuse  an  alleged  trespass,  ine\'itable 
necessity  or  accident  must  be  shown.  If  a  traveler  in  a  highway,  by 
unexpected  and  unforeseen  occurrences,  such  as  a  sudden  flood,  heavy 
drifts  of  snow,  or  the  falling  of  a  tree,  is  shut  out  from  the  traveled 
paths,  so  that  he  cannot  reach  his  destination,  without  passing  upon 
adjacent  lands,  he  is  certainly  under  a  necessity  so  to  do.  It  is  essential 
to  the  act  to  be  done,  without  which  it  cannot  be  accomplished.  Serious 
inconveniences,  to  say  the  least,  would  follow,  especially  in  a  cHmate 
like  our  own,  if  this  right  were  denied  to  those  who  have  occasion  to 
pass  over  the  public  ways.  Not  only  would  intercourse  and  business 
be  sometimes  suspended,  but  life  itself  would  be  endangered.  In  hilly , 
and  mountainous  regions,  as  well  as  in  exposed  places  near  the  sea 
coast,  severe  and  unforeseen  storms  not  unfrequently  overtake  the 
traveler,  and  render  highways  suddenly  impassable,  so  that  to  advance 
or  retreat  by  the  ordinary  path,  is  alike  impossible.  In  such  cases,  the 
only  escape  is,  by  turning  out  of  the  usually  traveled  way,  and  seeking 
an  outlet  over  the  fields  adjoining  the  highway.  If  a  necessity  is  not 
created,  under  such  circumstances,  sufficient  to  justify  or  excuse  a 
traveler,  it  is  difficult  to  imagine  a  case  which  would  come  within  the 
admitted  rule  of  law.  To  hold  a  party  guilty  of  a  wrongful  invasion  of 
another's  rights,  for  passing  over  land  adjacent  to  the  highway,  under 
the  pressure  of  such  a  necessity,  would  be  pushing  indi\'idual  rights  of 
property  to  an  unreasonable  extent,  and  giving  them  a  protection 
beyond  that  which  finds  a  sanction  in  the  rules  of  law.  Such  a  tem- 
porary and  unavoidable  use  of  private  property,  must  be  regarded  as 
one  of  those  incidental  burdens  to  which  all  property  in  a  civilized 
community  is  subject.  In  fact,  the  rule  is  sometimes  justified  upon  the 
ground  of  public  convenience  and  necessity.  Highways  being  estab- 
lished for  public  service,  and  for  the  use  and  benefit  of  the  whole  com- 


662  CAMPBELL   V.  KACE.  [CHAP.  V. 

munity,  a  due  regard  for  the  welfare  of  all  requires,  that  when  tempo- 
rarily obstructed,  the  right  of  travel  should  not  be  interrupted.  In 
the  words  of  Lord  Mansfield,  "it  is  for  the  general  good  that  people 
should  be  entitled  to  pass  in  another  line."  It  is  a  maxim  of  the  com- 
mon law,  that  where  public  convenience  and  necessity  come  in  conflict 
with  private  right,  the  latter  must  yield  to  the  former.  A  person  trav- 
eling on  a  highway,  is  in  the  exercise  of  a  public,  and  not  a  private 
right.  If  he  is  compelled,  by  impassable  obstructions,  to  leave  the  way, 
and  go  upon  adjoining  lands,  he  is  still  in  the  exercise  of  the  same  right. 
The  rule  does  not,  therefore,  violate  the  principle  that  individual  con- 
venience must  always  be  held  subordinate  to  private  rights,  but  clearly 
falls  within  that  maxim,  which  makes  public  convenience  and  necessity 
paramount. 

It  was  urged  in  argument  that  the  effect  of  establishing  this  rule  of 
law  would  be  to  appropriate  private  property  to  public  use  without 
pro\iding  any  means  of  compensation  to  the  owner.  If  such  an  acci- 
dental, occasional,  and  temporary  use  of  land  can  be  regarded  as  an 
appropriation  of  private  property  to  a  public  use,  entitling  the  owner  to 
compensation,  which  may  well  be  doubted,  still  the  decisive  answer  to 
this  objection  is  quite  ob\dous.  The  right  to  go  extra  viam,  in  case  of 
temporary  and  impassable  obstructions,  being  one  of  the  legal  inci- 
dents or  consequences  which  attaches  to  a  highway  through  private 
property,  it  must  be  assumed,  that  the  right  to  the  use  of  land  adjoin- 
ing the  road  was  taken  into  consideration  and  proper  allowance  made 
therefor,  when  the  land  was  originally  appropriated  for  the  highway, 
and  that  the  damages  were  then  estimated  and  fLxed,  for  the  private 
injury  which  might  thereby  be  occasioned. 

It  was  also  suggested,  that  the  statutes  of  the  commonwealth,  im- 
posing the  duty  on  towns  to  keep  public  ways  in  repair,  and  rendering 
them  liable  for  damages  occasioned  by  defects  therein,  furnish  ample 
remedies  in  cases  of  obstructions,  and  do  away  with  the  necessity  of 
establishing  the  rule  of  the  common  law  in  this  commonwealth,  which 
gives  the  right  in  such  cases  to  pass  over  adjacent  lands.  But  this  is 
not  so.  Towns  are  not  liable  for  damages  in  those  cases  to  which  this 
rule  of  the  common  law  would  most  frequently  be  applicable  —  of 
obstructions,  occasioned  by  sudden  and  recent  causes,  which  have  not 
existed  for  the  space  of  twenty-four  hours,  and  of  which  the  towns  have 
had  no  notice.  Besides,  the  statute  liability  of  towns  does  not  extend 
to  damages  such  as  would  ordinarily  arise  from  the  total  obstruction  of 
a  highway,  being  expressly  confined  to  cases  of  bodily  injuries  and 
damages  to  property.  St.  1850,  c.  5;  Canning  v.  WiUiamstown,  1  Cush. 
451;  Harwood  v.  Lowell,  4  Cush.  310;  Brailey  v.  Southborough,  6 
Cush.   141. 

From  what  has  already  been  said,  the  limitations  and  restrictions 
of  the  right  to  go  upon  adjacent  lands  in  case  of  obstructions  in  the 
highway  can  be  readily  inferred.    Ha\'ing  its  origin  in  necessity,  it  must 


SECT.  III.]  CAMPBELL   V.    RACE.  663 

be  limited  by  that  necessity;  cessante  ratione,  cessat  ipsa  lex.  Such  a 
right  is  not  to  be  exercised  from  convenience  merely,  nor  when,  by  the 
exercise  of  due  care,  after  notice  of  obstructions,  other  ways  may  be 
selected  and  the  obstructions  avoided.  But  it  is  to  be  confined  to  those 
cases  of  inevitable  necessity  or  unavoidable  accident,  arising  from 
sudden  and  recent  causes  which  have  occasioned  temporary  and  impas- 
sable obstructions  in  the  highway.  What  shall  constitute  such  inevita- 
ble necessity  or  unavoidable  accident,  must  depend  upon  the  various 
circumstances  attending  each  particular  case.  The  nature  of  the  ob- 
struction in  the  road,  the  length  of  time  during  which  it  has  existed, 
the  vicinity  or  distance  of  other  public  ways,  the  exigencies  of  the 
traveler,  are  some  of  the  many  considerations  which  would  enter  into 
the  inquiry,  and  upon  which  it  is  the  exclusive  province  of  the  jury  to 
pass,  in  order  to  determine  whether  any  necessity  really  existed,  which 
would  justify  or  excuse  the  traveler.  In  the  case  at  bar,  this  question 
was  wholly  withdrawn  from  the  consideration  of  the  jury,  by  the  rul- 
ing of  the  court.  It  will  therefore  be  necessary  to  send  the  case  to  a 
new  trial  in  the  court  of  common  pleas. 

Exceptions  sustained 


Bacon,  Maxims,  reg.  5.  If  a  man  steal-YJands,  to  satisfy  his  present 
hunger,  this  is  no  felony  nor  larceny.  So  if  divers  be  in  danger  of 
drowning  by  the  casting  away  of  some  boat  or  bark,  and  one  of  them 
get  to  some  plank,  or  on  the  boat  side  to  keep  himself  above  water, 
and  another  to  save  his  life  thrust  him  from  it,  whereby  he  is  drowned, 
this  is  neither  se  defendendo  nor  bj-  misadventure,  but  justifiable.  So 
if  divers  felons  be  in  a  gaol,  and  the  gaol  by  casualt}'  is  set  on  fire, 
whereby  the  prisoners  get  forth,  this  is  no  escape,  nor  breaking  of 
prison.  So  upon  the  statute  that  every  merchant  that  setteth  his 
mercliandise  on  land  without  satisfying  the  customer  or  agreeing  for 
it  (which  agreement  is  construed  to  l)e  in  certainty),  shall  forfeit  his 
merchandise  ;  and  it  is  so  that  by  tempest  a  great  quantity  of  the 
merchandise  is  cast  overboard,  whereby  tlie  merchant  agrees  with 
the  customer  b}-  estimation,  which  falleth  out  short  of  the  truth  ;  yet 
tlie  over  quantity  is  not  forfeited,  In'  reason  of  the  necessity  ;  where 
note  that  necessity  dispenseth  with  the  direct  letter  of  a  statute  law. 


664  REGINA   V.   DUDLEY.  [CHAP.  V. 


REGINA  V.   DUDLEY. 

Queen's  Bench  Division.     1884. 

[Reported  15  Cox  C.  C.  624,  14  Q.  B.  D.  273.] 

Lord  Coleridge,  C.  J.^  The  two  prisoners,  Thomas  Dudley  and 
Edwin  Stephens,  were  indicted  for  the  murder  of  Richard  Parker  on 
the  high  seas  on  the  25th  day  of  July  in  the  present  year.  They  were 
tried  before  my  brother  Hiuldleston  at  Exeter  on  the  6th  day  of 
November,  and  under  the  direction  of  my  learned  brother,  the  jury 
returned  a  special  verdict,  the  legal  etfect  of  which  has  been  argued 
before  us,  and  on  which  we  are  now  to  pronounce  judgment.  The 
special  verdict  is  as  follows.  \_The  learned  judge  read  the  special 
verdict. '\  From  these  facts,  stated  with  the  cold  precision  of  a  special 
verdict,  it  appears  sufficiently  that  the  prisoners  were  subject  to  ter- 
rible temptation  and  to  sufferings  which  might  break  down  the  bodil}^ 
power  of  the  strongest  man  and  try  the  conscience  of  the  best.  Other 
details  yet  more  harrowing,  facts  still  more  loathsome  and  appalling, 
were  presented  to  the  jury,  and  are  to  be  found  recorded  in  my  learned 
brother's  notes  ;  but  nevertheless  this  is  clear,  —  that  the  prisoners 
put  to  death  a  weak  and  unoffending  boy  upon  the  chance  of  preserv- 
ing their  own  lives  by  feeding  upon  his  flesh  and  blood  after  he  was 
killed,  and  with  a  certainty  of  depriving  him  of  any  possible  chance 
of  survival.  The  verdict  finds  in  terms  that  "  if  the  men  had  not  fed 
upon  the  body  of  the  boy,  they  would  probabl}-  not  have  survived," 
and  that  '*  the  boy,  being  in  a  much  weaker  condition,  was  likely  to 
have  died  before  them."  They  might  possibly  have  been  picked  up 
next  day  by  a  passing  ship  :  the}'  might  possibly  not  have  been  picked 
up  at  all ;  in  either  case  it  is  obvious  that  the  killing  of  the  boy  would 
have  been  an  unnecessary'  and  profitless  act.  It  is  found  by  the  ver- 
dict that  the  boy  was  incapable  of  resistance,  and,  in  fact,  made  none ; 
and  it  is  not  even  suggested  that  his  death  was  due  to  any  violence  on 
his  part  attempted  against,  or  even  so  much  as  feared  b3%  them  who 
killed  him.  Under  these  circumstances  the  jury  say  the}'  are  ignorant 
whether  those  who  killed  him  were  guilty  of  murder,  and  have  referred 
it  to  this  court  to  say  what  is  the  legal  consequence  which  follows 
from  the  facts  which  they  have  found.  There  remains  to  be  consid- 
ered the  real  question  in  the  case,  whether  killing,  under  the  circum- 
stances set  forth  in  the  verdict,  be  or  be  not  murder.  The  contention 
that  it  could  be  anything  else  was  to  the  minds  of  us  all  both  new  and 
strange  ;  and  we  stopped  the  Attorney-General  in  his  negative  argu- 
ment that  we  might  hear  what  could  be  said  in  support  of  a  proposi- 
tion which  appeared  to  us  to  be  at  once  dangerous,  immoral,  and 
opposed  to  all  legal  principle  and  analogy.     All,  no  doubt,  that  can 

^  Part  of  the  opinion  only  is  given. 


i 


SECT.  III.]  KEGINA   V.   DUDLEY.  665 

be  said  has  been  urged  before  us,  and  we  are  now  to  consider  and 
determine  what  it  amounts  to.     First,  it  is  said  that  it  follows,  from 
various  definitions  of  murder  in  books  of  authority  — which  definitions 
imply,  if  they  do  not  state,  the  doctrine  —  that,  in  order  to  save  your 
own  life  vou   may  lawfully  take   away  the  life  of  another,  when  that 
other  is  neither  attempting  nor  threatening  yours,  nor  is  guilty  of  any 
illegal  act  whatever  towards  you  or  any  one  else.     But  if  these  defini- 
tions  be  looked  at,  they  will  not  be  found  to  sustain  the  contention.     4Z/<^*-^l/-'^ 
The  earliest  in  point  of  date  is  the  passage  cited  to  us  from  Bracton,      /»- JL- 
who  wrote  in  the  reign  of  Henry  III.     It  was  at  one  time  the  fashion 
to  discredit  Bracton,  as  Mr.  Reeves  tells  us,  because  he  was  supposed 
to  mingle  too  much  of   the  canonist  and  civilian  with  the  common 
lawyer.     There  is  now  no  such  feeling ;  but  the  passage  upon  homi- 
cide, on  which  reliance  is  placed,  is  a  remarkable  example  of  the  kind 
of  writing  which   may   explain  it.     Sin  and  crime  are  spoken  of  as 
apparently  equally  illegal :  and  the  crime  of  murder,  it  is  expressly 
declared,   may  be   committed  lingua  vel  facto ;    so  tliat  a  man  like 
Hero,  "•  done  to  death  b}-  slanderous  tongues,"  would,  it  seems,  in  the 
opinion  of  Bracton,  be  a  person  in  respect  of  whom  might  be  grounded 
a  legal  indictment  for  murder.     But  in  the  very  passage  as  to  necessity 
on  which  reliance  has  been  placed,  it  is  clear  that  Bracton  is  speaking 
of  necessity  in  the   ordinary  sense,  —  the  repelling  by  violence,  vio- 
lence justified   so  far   as  it   was   necessary  for  the  object,  any  illegal 
violence  used  towards  one's  self.     If,  says  Bracton  (Lib.  iii.  Art.  De 
Corona,  cap.  4,  fol.  120),  the  necessity  be  evitabiUs  et  evadere  posset 
absque  occisione^  tunc  erit  reus  homicidii,  —  woids  which  show  clearl}' 
that  he  is  thinking  of  physical  danger,  from  which  escape  may  be  pos- 
sible, and  that  inevitabilis  necessitas,  of  which  he  speaks  as  justifying 
homicide,  is  a  necessity  of  the   same  nature.     It  is,  if  possible,  3'et 
clearer  that  the  doctrine  contended  for  receives  no  support  from  the 
great  authority  of  Lord  Hale.     It  is  plain  that  in  his  view  the  necessity 
which  justifies  homicide  is  that  only  which  has  always  been,  and  is 
now,  considered  a  justification.     "  In  all  these  cases  of  homicide  by 
necessity,"   says  he,    ''as  in  pursuit   of  a  felon,  in  killing  him  that 
assaults  to  rob,  or  comes  to  burn  or  break  a  house,  or  the  like,  which 
are  in  themselves  no  felony"  (1  Hale  P.  C.  491).     Again,  he  says 
that  the  necessity  which  justifies  homicide  is  of  two  kinds  :  "  (1)  That 
necessity  which  is  of  a  private  nature  ;   (2)  That  necessity  which  re- 
lates to  the  public  justice  and  safety.     The  former  is  that  necessity 
which  obligeth  a  man  to  his  own   defence  and  safeguard  ;    and  this 
takes  in  these  inquiries  :  (1)  What  may  be  done  for  the  safeguard  of  a 
man's  own  life,"  —  and  then  follow  three  other  heads  not  necessary  to 
pursue.      Then    Lord   Hale  proceeds  :    ''  (1 )  As  touching  the   first  of 
these,  namely,  homicide  in  defence  of  a  man's  own  life,  which  is  usually 
styled  se  defendendo"  (1  Hale  P.  C.  478).     It  is  not  possible  to  use 
words  more  clear  to  show  that  Lord  Hale  regarded  the  private  neces- 
sity which  justified,  and  alone  justified,  the  taking  the  life  of  another 


666  REGINA   V.    DUDLEY.  [CHAP.  V. 

for  the  safeguard  of  one's  own  to  be  what  is  commonly  called  self- 
defence.  But  if  this  could  be  even  doubtful  upon  Lord  Hale's  words, 
Lord  Hale  himself  has  made  it  clear ;  for  in  the  chapter  in  which  he 
deals  with  the  exemption  created  b}'  compulsion  or  necessity,  he  thus 
expresses  himself:  "  If  a  man  be  desperately  assaulted  and  in  peril  of 
death  and  cannot   otherwise  escape,  unless  to  satisfy  his   assailant's 

'''  fury  he  will  kill  an  innocent  person  then  present,  the  tear  and  actual 

force  will  not  acquit  him  of  the  crime  and  punishment  of  murder  if  he 

,e  *\^  commit  the  fact,  for  he  ought  rather  to  die  himself  than  to  kill  an 

innocent ;  but  if  he  cannot  otherwise  save  his  own  life,  the  law  permits 
him  in  his  own  defence  to  kill  the  assailant,  for,  by  the  violence  of  the 
assault  and  the  offence  committed  upon  him  b}'  the  assailant  himself, 
the  law  of  nature  and  necessity"  hath  made  him  his  o-wn  jyrotector  cum 
debito  moderamine  inculjKitm  tuteloe,  (1  Hale  P.  C.  51).  But,  further 
still :  Lord  Hale  in  the  following  chapter  deals  with  the  position  as- 
serted by  the  casuists  and  sanctioned,  as  he  says,  by  Grotius  and  Puf- 
fendorf,  that  in  a  case  of  extreme  necessit}',  either  of  hunger  or  cloth- 
ing, ' '  theft  is  no  theft,  or  at  least  not  punishable  as  theft ;  and  some 
even  of  our  own  lawyers  have  asserted  the  same  ;  "  "  but,"  says  Lord 

^  Hale,  "I  take  it  that  here  in  England  that  rule,  at  least  bj^  the  laws 

of  England,  is  false ;  and  therefore  if  a  person,  being  under  necessity 
for  want  of  victuals  or  clothes,  shall  upon  that  account  clandestinely 
and  animo  furandi  steal  another  man's  goods,  it  is  a  felonv  and  a 
crime  b}'  the  laws  of  England  punisliable  with  death  "  (1  Hale  P.  C. 
"*'  54).     If  therefore  Lord  Hale  is  clear,  as  he  is,  that  extreme  necessity 

of  hunger  does   not  justify  larceny,  what  would  he  have  said  to  the 

^^      !  '   •      doctrine  that  it  justified  murder?     It  is  satisfactory  to  find  that  an- 
•'  other  great  authority,  second  probably  only  to  Lord  Hale,  speaks  with 

the  same  unhesitating  clearness  on  this  matter.  Sir  Michael  Foster,  in 
the  third  chapter  of  his  "Discourse  on  Homicide,"  deals  with  the  sub- 
ject of  Homicide  Founded  in  Necessity ;  and  the  whole  chapter  im- 
plies, and  is  insensible  unless  it  does  impl}-,  that  in  the  view  of  Sir 
Michael  Foster,  necessity  and  self-defence  (which  in  section  1  he 
defines  as  "opposing  force  to  force  even  to  the  death")  are  con- 
vertible terms.  There  is  no  hint,  no  trace  of  the  doctrine  now  con- 
tended for ;  the  whole  reasoning  of  the  chapter  is  entireh*  inconsistent 
with  it. 

In  East  (1  East  P.  C.  271),  the  whole  chapter  on  Homicide  b}-  Ne- 
cessity is  taken  up  with  an  elaborate  discussion  of  the  limits  within 
which  necessity  —  in  Sir  Michael  Foster's  sense   (given  above)  —  of 
'  self-defence  is  a  justification  of  or  excuse  for  homicide.     There  is  a 
short  section  at  the  end  (p.  294)  ver}'  generally  and  ver3-  doubtfully 

A  ''  expressed,  in  which  the  only  instance  discussed  is  the  well-known  one 

Ul^iAjT'^    '       of  two  shipwrecked  men  on  a  plank  able  to  sustain  onlv  one  of  them; 
i       and  the  conclusion  is  left  b}'  Sir  Edward  East  entirely  undetermined. 

t/iAj>A    0^>      What  is  true  of  Sir  Edward  East  is  true  also  of  Mr.  Serjeant  Haw- 
kins.    The  whole  of  his  chapter  on  Justifiable  Homicide  assumes  that 


II 


SECT.  III.]  REGINA   V.    DUDLEY.  667 

the  onl}'  justifiable  homicide  of  a  private  nature  is  in  defence  against 
force  of  a  man's  person,  house,  or  goods.  In  the  26th  section  we  find 
again  the  case  of  the  two  shipwrecked  men  and  the  single  plank,  with 
this  significant  expression  from  a  careful  writer :  "  It  is  said  to  be  jus- 
tifiable." So,  too,  Dalton,  c.  150,  clearh'  considers  necessity  and 
self-defence,  in  Sir  Michael  Foster's  sense  of  that  expression,  to  be 
convertible  terms,  —  though  he  prints  without  comment  Lord  Bacon's 
instance  of  the  two  men  on  one  plank  as  a  quotation  from  Lord  Bacon, 
adding  nothing  whatever  to  it  of  his  own  ;  and  there  is  a  remarkable 
passage  at  page  339,  in  which  he  says  that  even  in  the  case  of  a  mur- 
derous assault  upon  a  man,  yet  before  he  ma}'  take  the  life  of  the  man 
who  assaults  him,  even  in  self-defence,  ciincta  prius  tentanda.  The 
passage  in  Staundforde,  on  which  almost  the  whole  of  the  dicta  we 
have  been  considering  are  built,  wlien  it  comes  to  be  examined,  does 
not  warrant  the  conclusion  which  has  been  derived  from  it.  The 
necessit}'  to  justify  homicide  must  be,  he  says,  inevitable  ;  and  the 
example  which  he  gives  to  illustrate  his  meaning  is  the  verj'  same 
which  has  just  been  cited  from  Dalton,  showing  that  the  necessitj'  he 
was  speaking  of  was  a  physical  necessity  and  the  self-defence  a  defence 
against  ph3sical  violence.  Russell  merely  repeats  the  language  of  the 
old  text-books  and  adds  no  new  authority  nor  any  fresh  considerations. 
Is  there,  then,  an}-  authority  for  the  proposition  which  has  been  pre- 
sented to  us  ?  Decided  cases  there  are  none.  The  case  of  the  seven 
English  sailors  referred  to  by  the  commentator  on  Grotius  and  by 
Pufl!'endorf  has  been  discovered  by  a  gentleman  of  the  Bar  —  who 
communicated  with  my  brother  Huddleston  —  to  conve\'  the  authority', 
if  it  conveys  so  much,  of  a  single  judge  of  the  island  of  St.  Kitts, 
when  that  island  was  possessed  partly  by  France  and  partly  by  this  ■ 
country,  somewhere  about  the  year  1641.  It  is  mentioned  in  a  medical 
treatise  published  at  Amsterdam,  and  is  altogether,  as  authority  in  an 
English  court,  as  unsatisfactory  as  possible.  The  American  case 
cited  by  my  brother  Stephen  in  his  digest  from  Wharton  on  Homicide, 
page  237,  in  which  it  was  decided,  correctl}*,  indeed,  that  sailors  had 
no  right  to  throw  passengers  overboard  to  save  themselves,  but  on  the 
somewhat  strange  ground  that  the  proper  mode  of  determining  who 
was  to  be  sacrificed  was  to  vote  upon  the  subject  b}'  ballot,  can 
hardly,  as  my  brother  Stephen  says,  be  an  authority  satisfactor}'  to  a 
court  in  this  country.^     The  observations  of  Lord  Mansfield  in  tlie 

1  "  The  case  does  not  become  '  a  case  of  necessity '  unless  all  ordinary  means  of  self- 
preservation  have  been  exhausted.  The  peril  must  be  instant,  overwhelming  ;  leaving 
no  alternative  but  to  lose  our  own  life,  or  to  take  the  life  of  another  person.  .  .  .  For 
example :  suppose  that  two  persons  who  owe  no  duty  to  one  another  that  is  not  mutual 
should,  by  accident  not  attributable  to  either,  be  placed  in  a  situation  where  both 
cannot  survive.  Neither  is  bound  to  save  the  other's  life  by  sacrificing  his  own  ;  nor 
would  either  commit  a  crime  in  saving  his  own  life  in  a  struggle  for  the  only  means 
of  safety.  But  in  applying  this  law,  we  must  look  not  only  to  the  jeopardy  in  which 
the  parties  are,  but  also  to  the  relations  in  which  they  stand.  The  slayer  must  be  • 
under  no  obligation  to  make  his  own  safety  secondary  to  the  safety  of  others.  .  .  . 


668  BEGINA    V.    DUDLEY.  [CHAP.  V. 

case  of  Rex  v.  Stratton  and  others  (21  St.  Tr.  1045),  striking  and 
excellent  as  they  are,  were  delivered  in  a  political  trial,  where  the 
question  was  whether  a  political  necessity  had  arisen  for  deposing  a 
governor  of  Madras.  But  they  have  little  application  to  the  case 
before  us,  which  must  be  decided  on  very  different  considerations.^ 
The  one  real  authority  of  former  times  is  Lord  Bacon,  who  in  his  com- 
mentary on  the  maxim,  Necessitas  inducit  privilegium  quoad  jura 
privata^  lays  down  the  law  as  follows:  "Necessity  carrieth  a  privi- 
lege in  itself.  Necessity  is  of  three  sorts,  —  necessity  of  conservation 
of  life,  necessity  of  obedience,  and  necessity  of  the  act  of  God  or  of  a 
stranger.  First,  of  conservation  of  life.  If  a  man  steals  viands  to 
satisfy  his  present  hunger,  this  is  no  felony  nor  larceny.  So  if  divers 
be  in  danger  of  drowning  by  the  casting  away  of  some  boat  or  barge, 
and  one  of  them  get  to  some  plank,  or  on  the  l)oat's  side,  to  keep  him- 
self above  water,  and  another  to  save  his  life  thrust  him  from  it, 
whereby  he  is  drowned,  this  is  neither  se  defendendo  nor  by  misad- 
venture, but  justifiable."  On  this  it  is  to  be  observed  that  Lord 
Bacon's  proposition  that  steahng  to  satisfy  hunger  is  no  larceny  is 
hardly  supported  by  Staundforde,  whom  he  cites  for  it,  and  is  ex- 
pressly contradicted  bj'  Lord  Hale  in  the  passage  already  cited.  And 
for  the  proposition  as  to  the  plank  or  boat,  it  is  said  to  be  derived 
from  the  canonists  ;  at  any  rate  he  cites  no  authority  for  it,  and  it 
must  stand  upon  his  own.  Lord  Bacon  was  great  even  as  a  lawyer ; 
but  it  is  permissible  to  much  smaller  men,  relying  upon  principle  and 
on  the  authority  of  others  the  equals  and  even  the  superiors  of  Lord 
Bacon  as  lawyers,  to  question  the  soundness  of  his  dictum.     There 

The  passenger  stands  in  a  position  different  from  that  of  the  officers  and  seamen  ;  it 
is  the  sailor  who  must  encounter  the  hardships  and  perils  of  the  voyage.  .  .  .  The 
captain,  indeed,  and  a  sufficient  number  of  seamen  to  navigate  the  boat,  must  be 
preserved.  .  .  .  This  rule  may  be  deemed  a  harsh  one  towards  the  sailor,  who  may 
thus  far  have  done  his  duty;  but  when  the  danger  is  so  extreme  that  the  only  hope  is 
in  sacrificing  either  a  sailor  or  a  passenger,  any  alternative  is  hard  ;  and  would  it  not 
be  the  hardest  of  any,  to  sacrifice  a  passenger  in  order  to  save  a  supernumerary  sailor  ? 
.  .  .  When  the  ship  is  in  no  danger  of  sinking,  but  all  sustenance  is  exhausted,  and 
a  sacrifice  of  one  person  is  necessary  to  appease  the  hunger  of  others,  the  selection  is 
by  lot.  This  mode  is  resorted  to  as  the  fairest  mode  ;  and,  in  some  sort,  as  an  appeal 
to  God  for  the  selection  of  the  victim."  —  Baldwin,  J.  (to  the  jury)  in  United  States 
V.  Holmes,  1  Wall.  Jun.  1,  22. 

i  "  Wherever  necessity  forces  a  man  to  do  an  illegal  act,  forces  him  to  do  it,  it  justi- 
,  fies  him,  because  no  man  can  be  guilty  of  a  crime  without  the  will  and  intention  of  his 

V  mind.     It  must  be  voluntary  ;  therefore  a  madman  cannot  commit  a  crime.     A  man 

A  who  is  absolutely  by  natural  necessity  forced,  his  will  does  not  go  along  with  the  act ; 

^  and  therefore  in  the  case  of  natural  necessity  (an<l,  by  the  by,  whenever  a  question 

turns  upon  natural  necessity  it  is  a  question  to  be  determined  by  a  jury,  and  by  a 
jury  only  ;  it  is  a  question  upon  fact  and  the  degree  of  fact)  if  a  man  is  forced  to  com- 
mit acts  of  high  treason,  if  it  ajtpears  really  force,  and  such  as  human  nature  could 
f\\  not  be  expected  to  resist,  and  the  juiy  are  of  that  opinion,  the  man  is  not  then  guilty 

of  high  treason.     In  a  case  of  homicide,  if  a  man  was  attacked,  and  in  danger,  and 
i-      so  on  in  a  variety  of  instances,  natural  necessity  certainly  justifies."  —  Lord  MaN8» 
FlELp  (to  the  jury)  in  Rex  v.  Stratton.  21  How.  St.  Tr.  1045,  1223. 

c4i'  . 


SECT.  III.] 


EEGINA   V.    DUDLEY. 


669 


are  many  conceivable  states  of  things  in  which  it  might  possibly  be 
true  ;  but  if  Lord  Bacon  meant  to  lay  down  tiie  broad  proposition  that 
a  man  may  save  his  life  by  killing,  if  necessarv,  an  innocent  and  un- 
offending neighbor,  it  certainly  is  not  law  at  the  present  day.  There 
remains  the  authority  of  my  brother  Stephen,  who  both  in  his  Digest 
(Art.  32)  and  in  his  "  History  of  the  Criminal  Law  "  (vol.  ii.  p.  108), 
uses  language  perhaps  wide  enough  to  cover  this  case.  The  language 
is  somewhat  vague  in  both  places,  but  it  does  not  in  either  place  cover 
this  case  of  necessity,  and  we  have  the  best  authorit}'  for  saying  that 
it  was  not  meant  to  cover  it.  If  it  had  been  necessary,  we  must  with 
true  deference  have  differed  from  him  ;  but  it  is  satisfactory'  to  know 
that  we  have,  probably  at  least,  arrived  at  no  conclusion  in  which,  if 
he  had  been  a  member  of  the  court,  he  would  have  been  unable  to 
agree.  Neither  are  we  in  conflict  with  any  opinion  expressed  upon  this 
subject  by  the  learned  persons  who  formed  the  Commission  for  prepar- 
ing the  Criminal  Code.  Thej'  say  on  this  subject:  '•  We  are  not  pie- 
pared  to  suggest  that  necessity  should  in  every  case  be  a  justification  ; 
we  are  equally  unprepared  to  suggest  that  necessit}'  should  in  no  case 
be  a  defence.  We  judge  it  better  to  leave  such  questions  to  l)e  dealt  with 
when,  if  ever,  they  arise  in  practice,  by  applying  the  principles  of  law  to 
the  circumstances  of  the  particular  case."  It  would  have  been  satisfac- 
tory to  us  if  these  eminent  persons  could  have  told  us  whether  the 
received  definitions  of  legal  necessity'  were  in  their  judgment  correct 
and  exhaustive,  and,  if  not,  in  what  wa}'  they  should  be  amended  ; 
but  as  it  is  we  have,  as  the}-  sa}-,  "  to  apply  the  principles  of  law  to 
the  circumstances  of  this  particular  case."  Now,  except  for  the  pur- 
pose of  testing  how  far  the  conservation  of  a  man's  own  life  is  in  all 
cases  and  under  all  circumstances  an  absolute,  unqualified,  and  para- 
mount duty,  we  exclude  from  our  consideration  all  the  incidents  of 
war.  We  are  dealing  with  a  case  of  private  homicide,  not  one  im- 
posed upon  men  in  the  service  of  their  sovereign  or  in  the  defence  of 
their  countr}-.  Now  it  is  admitted  that  the  deliberate  killing  of  this 
unoffending  and  unresisting  boy  was  clearly  murder,  unless  the  killing 
can  be  justified  by  some  well-recognized  excuse  admitted  by  the  law. 
It  is  further  admitted  that  there  was  in  this  case  no  such  excuse,  un- 
less the  killing  was  justified  by  what  has  been  called  necessity.  But 
the  temptation  to  the  act  which  existed  here  was  not  what  the  law  hasj 
ever  called  necessity.  Nor  is  this  to  be  regretted.  Though  law  and 
morality  are  not  the  same,  and  though  many  things  ma}'  be  immoral 
which  are  not  necessarily  illegal,  yet  the  absolute  divorce  of  law  from 
morality  would  be  of  fatal  consequence,  and  such  divorce  would  follow 
if  the  temptation  to  murder  in  this  case  were  to  be  held  b}'  law  an 
absolute  defence  of  it.  It  is  not  so.  To  preserve  one's  life  is,  gener- 
a,lly  speaking,  a  duty  ;  but  it  may  be  the  plainest  and  the  highest  duty 
to  sacrifice  it.  War  is  full  of  instances  in  which  it  is  a  man's  duty  not 
to  live,  but  to  die.  The  duty,  in  case  of  shipwreck,  of  a  captain  to 
his  crew,  of  the  crew  to   the  passengers,  of  soldiers  to  women  and 


r\ 


670  KEGINA   V.   DUDLEY.  [CHAP.  V. 

children,  as  in  the  noble  case  of  the  "Birkenhead," — these  duties 
impose  on  men  the  moral  necessit}',  not  of  the  preservation,  but  of  the 
sacrifice,  of  their  lives  for  others,  from  which  in  no  country  —  least  of 
all,  it  is  to  be  hoped,  in  England — will  men  ever  shrink,  as  indeed 
they  have  not  shrunk.  It  is  not  correct,  therefore,  to  sa}'  that  there 
is  any  absolute  and  unqualified  necessity  to  preserve  one's  life.  "JVeces- 
se  est  tit  earn,  non  ut  vivam,"  is  a  saying  of  a  Roman  officer  quoted 
by  Lord  Bacon  himself  with  nigh  eulogy  in  the  ver}'  chapter  on  Ne- 
cessity to  which  so  much  reference  has  been  made.  It  would  be  a 
very  easy  and  cheap  display  of  commonplace  learning  to  quote  from 
Greek  and  Latin  authors,'  —  from  Horace,  from  Juvenal,  from  Cicero, 
from  Euripides,  —  passage  after  passage  in  which  the  duty  of  dying 
for  others  has  been  laid  down  in  glowing  and  emphatic  language  as 
resulting  from  the  principles  of  heathen  ethics.  It  is  enough  in  a 
Christian  country  to  remind  ourselves  of  the  Great  Example  which 
we  profess  to  follow.  It  is  not  needful  to  point  out  the  awful  danger 
of  admitting  the  principle  which  has  been  contended  for.  Who  is  to 
be  the  judge  of  this  sort  of  necessity?  B}^  what  measure  is  the  com- 
parative value  of  lives  to  be  measured?  Is  it  to  be  strength,  or  intel- 
lect, or  what?  It  is  plain  that  the  principle  leaves  to  him  who  is  to 
profit  b}'  it  to  determine  the  necessity  which  will  justify  him  in  delib- 
erately taking  another's  life  to  save  his  own.  In  this  case  the  weakest, 
the  youngest,  the  most  unresisting  was  chosen.  Was  it  more  neces- 
sar}'  to  kill  him  than  one  of  the  grown  men?     The  answer  must  be,  No. 

"  So  spake  the  Fiend  ;  and  with  necessity, 
The  tyrant's  plea,  excused  his  devilish  deeds." 

It  is  not  suggested  that  in  this  particular  case  the  "deeds"  were 
"  devilish  ;  "  but  it  is  quite  plain  that  such  a  principle,  once  admitted, 
might  be  made  the  legal  cloak  for  unbridled  passion  and  atrocious 
crime.  There  is  no  path  safe  forjudges  to  tread  but  to  ascertain  the 
law  to  the  best  of  their  ability  and  to  declare  it  according  to  their 
judgment,  and  if  in  an}'  case  the  law  appears  to  be  too  severe  on  indi- 
viduals, to  leave  it  to  the  Sovereign  to  exercise  that  prerogative  of 
mercy  which  the  Constitution  has  entrusted  to  the  hands  fittest  to 
dispense  it.  It  must  not  be  supposed  tliat,  in  refusing  to  admit  temp- 
tation to  be  an  excuse  for  crime,  it  is  forgotten  how  terrible  the  temp- 
tation was,  how  awful  the  suffering,  how  hard  in  such  trials  to  keep 
the  judgment  straight  and  the  conduct  pure.  We  are  often  compelled 
to  set  up  standards  we  cannot  reach  ourselves  and  to  la}'  down  rules 
which  we  could  not  ourselves  satisfy.  But  a  man  has  no  right  to 
declare  temptation  to  be  an  excuse,  though  he  might  himself  have 
yielded  to  it,  nor  allow  compassion  for  the  criminal  to  change  or 
weaken  in  any  manner  the  legal  definition  of  the  crime.  It  is  there- 
fore our  duty  to  declare  that  the  prisoners'  act  in  this  case  was  wilful 
murder ;  that  the  facts  as  stated  in  the  verdict  are  no  legal  justification 
of  the  homicide.  Judgment  for  the  Crowru 


SECT.  III.]  REX    V.    CEUTCHLEY.  671 


REX  V.  CRUTCHLEY. 

Berkshire  Assizes.     1831. 
[Reported  5  Carrington  &  Payne,  1833.] 

Indictment  on  the  stat.  7  &  8  Geo.  4,  c.  30,  s.  4,  for  destroying  a 
threshing  machine,  the  property  of  a  person  named  Austin.  There 
were  other  counts  for  damaging  it  with  intent  to  destroy  it,  and  for 
damaging  it  with  intent  to  render  it  useless. 

It  appeared  that,  about  ten  o'clock  in  the  night  of  the  22d  of 
November,  1830,  a  mob  came  to  the  farm  of  Mr.  Austin,  and  broke  his 
threshing  machine  to  pieces.  It  was  proved  that  the  prisoner  was  with 
this  mob,  and  that  he  gave  the  threshing  machine  a  blow  with  a  sledge- 
hammer. 

Mr.  Justice  Patteson  allowed  the  witnesses  for  the  prosecution  to  be 
asked,  in  cross-examination,  whether  many  persons  had  not  been  com- 
pelled to  join  this  mob  against  their  will,  and  whether  the  mob  did  not 
compel  each  person  to  give  one  blow  to  each  threshing  machine  that 
the}'  broke. 

For  the  defence  William  Davis  was  called.  He  was  the  gamekeeper 
of  Mrs.  Bainbridge,  in  whose  service  the  prisoner  was  an  under-keeper. 
He  stated  that,  being  on  the  watch  at  Mrs.  Bainbridge's  preserves,  the 
mob  laid  hold  of  himself  and  the  prisoner,  and  compelled  both  to  go 
with  them  for  the  purpose  of  breaking  threshing  machines. 

Mr.  Justice  Patteson  allowed  the  witness  to  state  that,  before  the 
prisoner  and  himself  had  gone  many  yards  with  the  mob,  they  agreed 
to  run  away  from  the  mob  the  first  opportunity. 

The  witness  stated  that  he  ran  away  from  the  mob  in  about  ten 
minutes,  and  that  the  prisoner  joined  him  in  about  a  quarter  of  an 
hour  after  that  time,  and  that  they  then  returned  to  their  watching  at 
the  preserves. 

Verdict,  Not  guilty.^ 

1  "With  regard  to  the  argument  you  have  heard,  that  these  prisoners  wai'e  induced 
to  join  Thorn,  and  to  continue  with  him  from  a  fear  of  jiersonal  violence  to  themselves, 
I  am  bound  to  tell  you,  that  where  parties  for  such  a  reason  are  induced  to  join  a 
mischievous  man,  it  is  not  their  fear  of  violence  to  themselves  which  can  excuse  their 
conduct  to  others.  You  probably,  gentlemen,  never  saw  two  men  tried  at  a  criminal 
bar  for  an  offence  which  they  had  jointly  committed,  where  one  of  them  had  not  been 
to  a  certain  extent  in  fear  of  the  other,  and  had  not  been  influenced  by  that  fear  in  the 
conduct  he  pursued  ;  yet  that  circumstance  has  never  been  received  by  the  law  as 
an  excuse  for  his  crime,  and  the  law  is,  that  no  man,  from  a  fear  of  consequences  to 
himself^jias.  a  right  to  make  himself  a  party  to^oin^mitting  mischief  orimankiDd." 
Lord  Denman,  C.  J.,  in  Keg.  •;;.  Tyler,  8  C.  &  P.  616.  —Ed. 


672  ARP   V.    STATE.  [chap.  V. 

RESPUBLICA  V.  McCARTY. 
Supreme  Court  of  Pennsylvania.     1781. 

[Reported  2  Dallas,  86.] 

McKean,  C.  J.^  The  crime  imputed  to  the  defendant  by  the  indict- 
ment is  that  of  levying  war,  by  joining  the  armies  of  the  King  of 
Great  Britain.  Enlisting,  or  procuring  any  person  to  be  enlisted,  m 
the  service  of  the  enemy,  is  clearly  an  act  of  treason.  By  the  defend- 
ant's own  confession  it  appears  that  he  actually  enlisted  in  a  corps 
belonging  to  the  enemy  ;  but  it  also  appears  that  he  had  previously  been 
taken  prisoner  by  them,  and  confined  at  Wilmington.  He  remained, 
however,  with  the  British  troops  for  ten  or  eleven  months,  during  which 
he  might  easily  have  accomplished  his  escape,  and  it  must  be  remem- 
bered that  in  the  eye  of  the  law  nothing  will  excuse  the  act  of  joining 
an  enemy  but  the  fear  of  immediate  death  ;  not  the  fear  of  any  infe- 
rior personal  injury,  nor  the  apprehension  of  any  outrage  upon  property. 
But  had  the  defendant  enlisted  merely  from  the  fear  of  famishing,  and 
with  a  sincere  intention  to  make  his  escape,  the  fear  could  not  surely 
always  continue,  nor  could  his  intention  remain  unexecuted  for  so  long 
a  period. 


|jtL^ 


ARP  V.  STATE. 

Supreme  Court  of  Alabama.     1893. 

[Reported  97  Ala.  5.] 

Coleman,  J.^  .  .   .  The  court  was  asked  to  give  the  following  charge : 
"  If  the  jury  believe  from  the  evidence  that  the  defendant  killed  Pogue 
under  duress,  under  compulsion  from  a  necessity,  under  threats  of  im- 
mediate impending  peril  to  his  own  life,  such  as  to  take  away  the  free 
,    agency  of  the  defendant,  then  he  is  not  guiltv."    The  court  refused  this 
f   charge,  and  the  refusal  is  assigned  as  error.     This  brings  up  for  con- 
''    .^,  sideration  the  question,  what  is  the  law  when  one  person,  under  com- 
pulsion or  fear  of  great  bodily  harm  to  himself,  takes  the  life  of  an 
innocent    person  ;    and   what   is   his   duty   when    placed   under   such 
circumstances? 

The  fact  that  defendant  had  been  in  the  employment  of  Burkhalter 
is  no  excuse.     The  command  of  a  superior  to  an  inferior,  of  a  parent 

L  To  the  jury  only  so  much  of  the  charge  i?  given  as  deals  with  the  question  of  com- 
pulsion. —  Ed. 

^*  Only  so  much  of  the  opinion  as  discusses  the  question  of  compulsion  is  given. 
—  Ei), 


SECT.  III.]  ARP   V.   STATE.  673 

to  a  child,  of  a  master  to  a  servant,  or  of  a  principal  to  his  agent,  will 
not  justify  a  criminal  act  done  in  pursuance  of  such  command-  1  Bishop, 
§  355  ;  Reese  v.  State,  73  Ala.  18  ;  4  Blackstone,  §  27. 

In  a  learned  discussion  of  the  question,  to  be  found  in  Leading  Crim- 
inal Cases,  vol.  i,  p.  81,  and  note  on  p.  85,  by  Bennett  and  Heard,  it  is 
declared  that  "  for  certain  crimes  the  wife  is  responsible,  although  com- 
mitted under  the  compulsion  of  her  husband.  Such  are  murder,"  etc. 
To  the  same  effect  is  the  text  in  14  Am.  &  Eng.  Encyc.  of  Law,  p.  649  ; 
and  this  court  gave  sanction  to  this  rule  in  Bibb  v.  State,  94  Ala.  31  ; 
10  So.  Rep.  506.  In  Ohio  a  contrary  rule  prevails  in  regard  to  the 
wife.  Davis  v.  State,  15  Ohio,  72  ;  45  Amer.  Dec.  559.  In  Arkansas 
there  is  a  statute  specially  exempting  married  women  from  liability, 
when  "  acting  under  the  threats,  commands,  or  coercion  of  their  hus- 
bands ;  "  but  it  was  held  under  this  act  there  was  no  presumption  in 
favor  of  the  wife  accused  of  murder,  and  that  it  was  incumbent  on  her 
to  show  that  the  crime  was  done  under  the  influence  of  such  coercion, 
threats,  or  commands.  Edwards  ik  State,  27  Ark.  493,  reported  in 
1  Criminal  Law,  by  Green,  p.  741. 

In  the  case  of  Beal  r.  The  State  of  Georgia,  72  Ga.  Rep.  200,  and 
also  in  the  case  of  The  People  >'.  Miller,  66  Cal.  468,  the  question  arose 
upon  the  sufficiency  of  the  testimony  of  a  witness  to  authorize  a  con- 
viction for  a  felony,  it  being  contended  that  the  witness  was  an  accom- 
plice. In  both  cases  the  witness  was  under  fourteen  years  of  age.  It 
was  held  that  if  the  witness  acted  under  threats  and  couipulsion,  he  was 
not  an  accomplice.     The  defendants  were  convicted  in  both  cases. 

In  the  case  of  Rex  r.  Crutchle}',  5  C.  &  P.  133,  the  defendant  was 
indicted  for  breaking  a  threshing  machine.    The  defendant  was  allowed 
to  prove  that  he  was  compelled  by  a  mob  to  go  with  them  and  com-    ' 
pelled  to  hammer  the  threshing  machine,  and  was  also  permitted  to 
prove  that  he  ran  away  at  the  first  opportunity-. 

In  Hawkins*   Pleas  of  the   Crown,   vol.  i,  c.   28,  §  26,  it  is  said :  "^, 
*'  The  killing  of  an  innocent  person  in  defence  of  a  man's  self  is  said  to    /  ^ 
be  justifiable  in  some  special  cases,  as  if  two  be  shipwrecked  together,  /  -i-^ 
and  one  of  them  get  upon  a  plank  to  save  himself,  and  the  other  also, 
having  no  other  means  to  save  his  life,  get  upon  the  same  plank,  and 
finding  it  not  able  to  support  them  both,  thrusts  the  other  from  it, 
whereby  he  is  drowned,  it  seems  that  he  who  thus  preserved  his  own  / 
life  at  the  expense  of  that  other  may  justify  the  fact  by  the  inevitable 
necessit}'  of  the  case." 

In  1  Hale's  Pleas  of  the  Crown,  c.  vii,  §  50,  it  is  said:  "There 
is  to  be  observed  a  difference  between  the  times  of  war,  or  public  in- 
surrection or  rebellion,  when  a  person  is  under  so  great  a  power  that 
he  cannot  resist  or  avoid,  the  law  in  some  cases  allows  an  impunity  for 
parties  compelled,  or  drawn  by  fear  of  death,  to  do  some  acts  in  them- 
selves capital,  which  admit  no  excuse  in  time  of  peace.  .  .  .  Now  as 
to  times  of  peace,  if  a  man  be  menaced  with  death  unless  he  will  com- 
mit an  act  of  treason,  murder,  or  robbery,  the  fear  of  death  doth  not 


674  ARP    V.    STATE.  [chap.  V. 

excuse  him  if  he  commit  the  act;  for  the  law  hath  provided  a  sufficient 
remedy  against  such  fears  by  applying  himself  to  the  court  and  officers 
of  justice  for  a  writ  or  precept  d<'  secxritate  puds.  Again,  if  a  man  be 
desperately  assaulted,  and  in  peril  of  death,  and  cannot  otherwise  es- 
cape unless  to  satisfy  his  assailant's  fury  he  will  kill  an  innocent  per- 
son, the  present  fear  of  actual  force  will  not  acquit  him  of  the  crime 
and  punishment  of  murder,  if  he  commit  the  act,  for  he  ought  rather 
to  die  himself  than  kill  an  innocent ;  but  if  he  cannot  otherwise  save 
his  own  life,  the  law  permits  him  in  his  own  defence  to  kill  his 
assailant." 

Blackstone,  vol.  4,  §  30,  declares  the  law  to  be,  "  Though  a  man  be 
violently  assaulted,  and  has  not  other  possible  means  of  escaping  death 
but  by  killing  an  innocent  person,  this  fear  and  force  shall  not  acquit 
him  of  murder ;  for  he  ought  rather  to  die  himself  than  escape  by  the 
murder  of  an  innocent." 

In  Stephen's  Commentaries,  vol.  4,  book  6,  c.  2,  pp.  83-84,  the 
same  rule  is  declared  to  be  the  law. 

In  East's  Crown  Law,  the  same  general  principles  are  declared  as  to 
cases  of  treason  and  rebellion,  etc.  But  on  page  294,  after  referring 
to  the  case  of  two  persons  being  shipwrecked  and  getting  on  the  same 
plank,  proceeds  as  follows :  "  Yet,  according  to  Lord  Hale,  a  man  can- 
not even  excuse  the  killing  of  another  who  is  innocent,  under  a  threat, 
however  urgent,  of  losing  his  own  Ufe  unless  he  comply.  But  if  the 
commission  of  treason  ma}-  be  extenuated  by  the  fear  of  present  death, 
and  while  the  party  is  under  actual  compulsion,  there  seems  no  reason 
why  this  offence  may  not  be  mitigated  upon  the  like  consideration  of 
human  infirmity.  But  if  the  party  might,  as  Lord  Hale  in  one  place 
supposes,  have  recourse  to  the  law  for  his  protection  against  such  threats, 
it  will  certainly  be  no  excuse  for  committing  murder." 

In  Russell  on  Crimes,  vol.  1,  §  699,  it  is  stated  as  follows:  "The 

person  committing  the  crime  must  be  a  free  agent,  and  not  subject  to 

(^*^  actual  force  at  the  time  the  act  is  done ;  thus,  if  A  by  force  take  the 

J   r\  arm  of  B,  in  which  is  a  weapon,  and  therewith  kill  C,  A  is  guilty  of 

\  O  murder,  but  not  B.     But  if  it  be  only  a  moral  force  put  upon  B,  as 

j  r    ,  by  threatening  him  with  duress  or  imprisonment,  or  even  by  an  assault 

to  the  peril  of  his  life,  in  order  to  compel  him  to  kill  C,  it  is  no  legal 

excuse." 

In  the  case  of  Regina  v.  Tyler,  reported  in  8  Car.  &  Payne,  618, 
Lord  Denman,  C.  J.,  declares  the  law  as  follows:  "With  regard  to 
the  argument  you  have  heard,  that  these  prisoners  were  induced  to 
join  Thom,  and  to  continue  with  him  from  a  fear  of  personal  violence 
to  themselves,  1  am  bound  to  tell  you  that  where  parties  for  such 
reason  are  induced  to  join  a  mischievous  man,  it  is  not  their  fear  of 
violence  to  themselves  which  can  excuse  their  conduct  to  others.  .  .  . 
The  law  is  that  no  man,  from  a  fear  of  consequences  to  himself,  has  a 
right  to  make  himself  a  party  to  committing  mischief  on  mankind." 
In  the  case  of  Respublica  v.  McCarty,  2  Dallas,  86,  when  the  de- 


SECT.  III.]  ARP   V.   STATE.  675 

fendant  was  on  trial  for  high  treason,  the  court  uses  this  language : 
"  It  must  be  remembered  that,  in  the  eye  of  the  law,  nothing  will  ex- 
cuse the  act  of  joining  the  enem}'  but  the  fear  of  immediate  death ;  not 
the  fear  of  any  inferior  personal  injur}-,  nor  the  apprehension  of  any 
outrage  on  property." 

The  same  rule  in  regard  to  persons  charged  with  treason  as  that 
stated  in  Hale's  Pleas  of  the  Crown  is  declared  in  Hawkins,  vol.  1. 
c.  17,  §  28  and  note,  and  both  authors  hold  that  "the  question  of 
the  practicability  of  escape  is  to  be  considered,  and  that  if  the  person 
thus  acting  under  compulsion  continued  in  the  treasonable  acts  longer 
than  was  necessary,  the  defence  ^ pro  tirnore  mortis'  will  not  be 
available." 

This  principle  finds  further  support  in  the  case  of  U.  S.  v.  Greiner, 
tried  for  treason,  reported  in  4  Phil,  396,  in  the  following  language  : 
"The  only  force  which  excuses  on  the  grounds  of  compulsion  is  force  '^jt-^  4--' 
upon  the  person  and  present  fear  of  death,  which  force  and  fear  must 
continue  during  all  the  time  of  military  service,  and  that  it  is  incum- 
bent in  such  a  case  upon  him  who  makes  force  his  defence  to  show  an 
actual  force,  and  that  he  quitted  the  service  as  soon  as  he  could."  ,    -^^ 

Wharton's  Criminal  Law,  vol.  1,  §  94,  under  the  head  of  Persons  «»,-  • 

under  Compulsion,  says  :  "  Compulsion  ma}'  be  viewed  in  two  aspects  : 
1.  When  the  immediate  agent  is  physically  forced  to  do  the  injurv,  as 
when  his  hand  is  seized  by  a  person  of  superior  strength,  and  is  used 
against  his  will  to  strike  a  blow,  in  which  case  no  guilt  attaches  to  the 
person  so  coerced.  2.  When  the  force  applied  is  that  of  authority  or 
fear.  Thus,  when  a  person  not  intending  wrong  is  swept  along  by  a 
party  of  persons  whom  he  cannot  resist,  he  is  not  responsible,  if  he  is 
compelled  to  do  wrong  by  threats  on  the  part  of  the  offenders  instantly 
to  kill  him,  or  to  do  him  grievous  bodily  harm  if  he  refuses  ;  but  threats 
of  future  injury,  or  the  command  of  any  one  not  the  husband  of  the 
offender,  do  not  excuse  any  offence.  Thus,  it  is  a  defence  to  an  indict- 
ment for  treason  that  the  defendant  was  acting  in  obedience  to  a  de 
facto  government,  or  to  such  concurring  and  overbearing  sense  of  the 
community  in  which  he  resided  as  to  imperil  his  life  in  case  of  dissent." 
In  section  1803  a,  of  the  same  author  (Wharton),  it  is  said  :  "  No  mat- 
ter what  may  be  the  shape  compulsion  takes,  if  it  affects  the  person 
and  he  yielded  to  it  bonafide^  it  is  a  legitimate  defence." 

We  have  examined  the  cases  cited  by  Mr.  Wharton  to  sustain  the 
text,  and  find  them  to  be  cases  of  treason,  or  fear  from  the  party  slain, 
and  in  none  ftf  them  is  there  a  rule  different  from  that  declared  in  the 
common  law  authorities  cited  by  us. 

Bishop  on  Criminal  Law,  §§  346,  347,  348,  treats  of  the  rules  of  law 
applicable  to  acts  done  under  necessity  and  compulsion.  It  is  here 
declared  :  "That  always  an  act  done  from  compulsion  and  necessit}'  is 
not  a  crime.  To  this  proposition  the  law  knows  no  exception.  What- 
ever it  is  necessary  for  a  man  to  do  to  save  his  life,  is,  in  general,  to  be 
considered  as  compelled." 


676  ARP   V.    STATE.  [chap.  V. 

The  cases  cited  to  these  propositions  show  the  facts  to  be  different 
from  those  under  consideration.  The  case  referred  in  1  Plow.  19,  was 
where  the  defendant  had  thrown  overboard  a  part  of  his  cargo  of  green 
wood  during  a  severe  tempest  to  save  his  vessel  and  the  remainder 
of  his  cargo.  The  other,  5  Q.  B.  279,  was  for  the  failure  to  keep  up 
a  highwa}',  which  the  encroachments  of  the  sea  had  made  impossible  ; 
and  that  of  Tate  v.  The  State,  5  Black.  73,  was  also  that  of  a  super- 
visor of  a  public  highway,  and  the  others  were  cases  of  treason,  to 
which  reference  has  been  made.  In  section  348,  the  author  cites  the  rule 
laid  down  bj-  Russell,  and  also  of  Lord  Denman,  and  in  1  East  P.  C,  to 
which  reference  has  alread}'  been  made.  In  section  845,  the  same  author 
uses  the  following  language:  "The  cases  in  which  a  man  is  clearly 
justified  in  taking  another's  life  to  save  his  own  are  when  the  other 
has  voluntarily  placed  himself  in  the  wrong.  And  pi'obabli/,  as  we  have 
seen,  it  is  never  the  right  of  one  to  deprive  an  innocent  third  person  of 
life  for  the  preservation  of  his  own.  There  are,  it  vwuld  seetn,  circum- 
stances in  which  one  is  bound  even  to  die  for  another."  Italics  are 
ours,  —  emphasized  to  call  attention  to  the  fact  that  the  author  is  care- 
ful to  content  himself  more  with  a  reference  to  the  authorities  which 
declare  these  principles  of  law  than  an  adoption  of  them  as  his  own. 

The  authorities  seem  to  be  conclusive  that,  at  common  law,  no  man 
can  excuse  himself,  under  the  plea  of  necessit}'  or  compulsion,  for  tak- 
ing the  life  of  an  innocent  person. 

Our  statute  has  divided  murder  into  two  degrees,  and  affixed  the 
punishment  for  each  degree,  but  in  no  respect  has  added  to  or  taken 
away  any  of  the  ingredients  of  murder  as  known  at  common  law. 
Mitchell  V.  State,  60  Ala.  26 ;  Fields  v.  State,  52  Ala.  352. 

That  persons  have  exposed  themselves  to  imminent  peril  and  death 
for  their  fellow  man,  and  that  there  are  instances  where  innocent  per- 
sons have  submitted  to  murderous  assaults  and  death  rather  than  take 
life  is  well  established,  but  such  self-sacrifices  emanated  from  other  mo- 
tives than  the  fear  of  legal  punishment.  That  the  fear  of  punislnnent 
by  imprisonment  or  death  at  some  future  day  by  due  process  of  law 
can  operate  with  greater  force  to  restrain  or  deter  from  its  violation, 
than  the  fear  of  immediate  death  unlawfullj'  inflicted,  is  hardly  recon- 
cilable with  our  knowledge  and  experience  with  that  class  of  mankind 
•who  are  controlled  by  no  other  higher  principle  than  fear  of  the  law. 
Be  this  as  it  may,  there  are  other  principles  of  law  undoubtedly  appli- 
cable to  the  facts  of  this  case,  and  which  we  think  cannot  be  ignored. 

The  evidence  of  the  defendant  himself  shows  that  he  went  to  Burk- 
halter's  house  about  nine  o'clock  of  the  night  of  the  killing,  and  there 
met  Burkhalter  and  Leith,  and  that  it  was  there,  and  at  that  time,  they 
told  him  he  must  kill  Pogue.  The  evidence  is  not  clear  as  to  how  far 
it  was  from  Burkhalter's  to  Pogue's  dwelling,  where  the  crime  was  per- 
petrated ;  but  it  was  sufficient  to  show  that  there  was  some  considerable 
distance  between  the  places,  and  he  testifies  as  the}'  went  to  Pogue's, 
they  went  bv  the  mill  and  got  the  axe  with  which  he  killed  him.    Under 


SECT.  Ill,]  UNITED   STATES   V.   JONES.  677 

every  principle  of  law,  it  was  the  duty  of  the  defendant  to  have  escaped 
from  Burkhalter  and  Leith,  after  being  informed  of  their  intention  to 
compel  him  to  take  the  life  of  Pogue,  as  much  so  as  it  is  the  duty  of 
one  who  had  been  compelled  to  take  up  arms  against  his  own  govern- 
ment, if  he  can  do  so  with  reasonable  safety  to  himself ;  or  of  one  as- 
sailed, to  retreat  before  taking  the  life  of  his  assailant.  Although  it 
may  have  been  true  that  at  the  time  he  struck  the  fatal  blow  he  had 
reason  to  believe  he  would  be  killed  by  Burkhalter  and  Leith  un- 
less he  killed  Pogue,  yet,  if  he  had  the  opportunity,  if  it  was  practi- 
cable, after  being  informed  at  Burkhalter's  house  of  their  intention,  he 
could  have  made  his  escape  from  them  with  reasonable  safety,  and  he 
failed  to  do  so,  but  remained  with  them  until  the  time  of  the  killing, 
the  immediate  necessity  or  compulsion  under  which  he  acted  at  that 
time  would  be  no  excuse  to  him.  As  to  whether  escape  was  practi- 
cable to  defendant,  as  we  have  stated,  was  a  question  of  fact  for  the 
jury.  The  charge,  numbered  1  and  refused  by  the  court,  ignored  this 
principle  of  law  and  phase  of  evidence,  and  demanded  an  acquittal  of 
defendant  if  at  the  time  of  the  killing  the  compulsion  and  coercion 
operated  upon  the  defendant,  and  forced  him  to  the  commission  of  the 
act,  notwithstanding  he  might  have  avoided  the  necessity  by  escape 
before  that  time.  We  do  not  hesitate  to  say  he  would  have  been  justi- 
fiable in  taking  the  life  of  Burkhalter  and  Leith,  if  there  had  been  no 
other  way  open  to  enable  him  to  avoid  the  necessity  of  taking  the  life 
of  an  innocent  man.  The  charge  requested  was  erroneous  and  mis- 
leading, in  the  respect  that  it  ignored  the  law  and  evidence  in  these 
respects.  Affirmed. 


UNITED   STATES   y.   JONES. 
U.  S.  Circuit  Court,  Dist.  Pennsylvania.     1813. 

[Reported  3  Washington,  C.  C.  209.] 

The  prisoner  was  indicted  for  feloniously  and  piratically  entering  a 
certain  Portuguese  brig  (by  name),  and  assaulting  the  captain,  &c.  It 
appeared  in  evidence,  on  the  part  of  the  prosecution,  that  the  defendant 
was  the  first  lieutenant  of  a  privateer  schooner,  called  the  "  Revenge," 
William  Butler  master,  duly  commissioned  by  the  President  of  the 
United  States,  on  the  12th  of  October,  1812.  The  points  of  law  raised 
b}'  the  counsel  for  the  prisoner  were  five.  The  prisoner  was  an  inferior 
officer,  and  was  bound  to  obe^'  the  orders  of  Captain  Butler ;  of  course, 
he  cannot  be  punished  for  having  done  so.^ 

1  Ouly  so  much  of  the  case  as  involves  this  point  is  given. 


678 


PEOPLE    V.   DETROIT   WHITE    LEAD   WORKS.  [CHAP.  V. 


Washington,  Justice,  charged  the  jury.  The  only  remaining  qiies- 
ticn  of  law  which  has  been  raised  in  this  cause  is,  that  the  prisoner 
ought  to  be  presumed  to  have  acted  under  the  orders  of  his  superior 
officer,  which  it  was  his  dut\-  to  obey.  This  doctrine,  equally  alarming 
and  unfounded,  underwent  an  examination  and  was  decided  by  this 
court  in  the  case  of  General  Bright.  It  is  repugnant  to  reason,  and 
to  the  positive  law  of  the  land.  No  military  or  civil  officer  can  com- 
mand an  inferior  to  violate  the  laws  of  his  country  ;  nor  will  such  a 
command  excuse,  much  less  justify,  the  act.  Can  it  be  for  a  moment 
pretended  that  the  general  of  an  arm}-,  or  the  commander  of  a  ship  of 
war,  can  order  one  of  his  men  to  commit  murder  or  felony?  Certainly 
not.  In  relation  to  the  navy,  let  it  be  remarked,  that  the  fourteenth 
section  of  the  law  for  the  better  government  of  that  part  of  the  public 
force,  which  enjoins  on  inferior  officers  or  privates  the  dut}-  of  obe- 
dience to  their  superior,  cautiously  speaks  of  the  lawful  orders  of  that 
superior. 

Disobedience  of  an  unlawful  order  must  not,  of  course,  be  punish- 
able ;  and  a  court-martial  would,  in  such  a  case,  be  bound  to  acquit  the 
person  tried  upon  a  charge  of  disobedience.  We  do  not  mean  to  go 
further  than  to  say,  that  the  participation  of  the  inferior  officer  in  an 
act  which  he  knows,  or  ought  to  know,  to  be  illegal,  will  not  be  excused 
by  the  order  of  his  suoerior.^ 


PEOPLE  V,   DETROIT  WHITE   LEAD    WORKS. 

Supreme  Court  of  Michigan.     1890. 

[Reported  82  Mich.  471.] 

Grant,  J.^  This  case  is  brought  to  this  court  by  writ  of  certiorari 
from  the  Recorder's  Court  of  the  citj'  of  Detroit. 

The  defendants  were  convicted  of  unlawfully  and  wilfully  creating 
and  maintaining  a  nuisance,  consisting  of  the  creation  and  emission  of 
unwholesome,  offensive,  and  nauseating  odors,  smells,  vapors,  and 
smoke,  to  the  great  damage  and  common  nuisance  of  all  people  living 
in  the  neighborhood  thereof,  and  of  all  people  passing  and  repassing 
on  the  streets  and  alley's  adjacent  thereto,  contrary  to  an  ordinance  of 
the  city  in  such  case  made  and  provided,  being  section  5,  chap.  55, 
Rev.  Ord.  1884.  The  ordinance  in  question  is  set  forth  in  the  return  of 
the  judge  to  the  writ. 

The  defendant  the  Detroit  White  Lead  Works  is  a  corporation  organ- 
ized under  the  laws  of  the  state.  Defendant  Hinehman  is  president, 
defendant  Dean  is  vice-president,  and  defendant  Rogers  is  treasurer 
and  manager.     The  defendants  Hinehman,   Dean,   and   Rogers  were 


^  Ace.  Rex  V.  Thomas,  1  Russ.  Crimes,  731;  U, 
Blodgett,  12  Met.  56.  —  Ed. 

2  Part  of  the  opinion  is  omitted. 


S.  f.  Carr,  1  Woods,  560;  Com.  v. 


SECT.  III.]         PEOPLE   V.   DETROIT   WHITE   LEAD   WORKS.  679 

fined  SI  each,  and  the  defendant  the  Detroit  White  Lead  Works  $10 
and  costs.     No  otlier  penalty  was  imposed. 

The  facts  found  and  returned  by  the  Recorder's  Court  clearly  estab- 
lish a  nuisance,  according  to  all  the  authorities.  These  facts  so  found 
are  conclusive  in  this  court,  and  we  can  only  apply  the  law  to  the 
facts.  Counsel  for  defendants  cannot,  therefore,  seriously  contend  that 
we  can  enter  into  a  discussion  and  determination  of  that  question, 
especially  as  the  evidence  is  not  before  us. 

Defendants  are  not  aided  by  the  fact  found  by  the  court  that,  during 
the  time  covered  by  the  complaint,  the  business,  in  all  respects,  had 
been  carried  on  in  a  careful  and  prudent  manner,  and  nothing  had  been 
done  by  those  managing  it  that  was  not  a  reasonable  and  necessary 
incident  of  the  business  ;  nor  by  the  further  fact  that,  when  the  defend- 
ant compaii}-  commenced  its  business,  the  lands  in  the  vicinit}-  of  its 
works  were  open  common.  It  is  undoubtedly  true  that  the  defendants, 
or  their  predecessors,  established  their  works  at  a  point  remote  from 
habitation,  possibly  in  recognition  of  the  fact  that  such  a  business  was 
at  least  not  pleasant,  if  not  injurious,  to  the  health  and  enjo\'ment  of 
those  living  near  it.  The  city  of  Detroit  has  extended  to  the  defend- 
ants' works,  and  the  owners  of  adjoining  lands  have  erected  dwellings 
thereon.  This  the}',  of  course,  had  the  legal  right  to  do.  The  defend- 
ants cannot  be  protected  in  the  enjoyment  of  their  property,  and  the 
canning  on  of  their  business,  if  it  becomes  a  nuisance  to  people  living 
upon  the  adjoining  properties,  and  to  those  doing  legitimate  business  with 
them.  Whenever  such  a  business  becomes  a  nuisance,  it  must  give 
way  to  the  rights  of  the  public,  and  the  owners  thereof  must  either 
devise  some  means  to  avoid  the  nuisance,  or  must  remove  or  cease  the 
business.  It  may  not  be  continued  to  the  injury  of  the  health  of  those 
living  in  its  vicinity.  This  rule  is  founded  both  upon  reason  and 
authority.  Nor  is  it  of  any  consequence  tliat  the  business  is  useful  or 
necessar}',  or  that  it  contributes  to  the  wealth  and  prosperity  of  the 
community.  Wood,  Nuis.,  §  19;  Queen  v.  Train,  2  Best  &  S.  640; 
Works  V.  Railroad  Co.,  5  McLean,  425;  Respublica  v.  Caldwell,  1  Dall. 
150;  Ross  /'.  Butler,  19  N.  J.  Eq.  296;  Robinson  v.  Baugh,  31  Mich. 
290. 

It  is  true  that,  in  places  of  population  and  business,  not  everything 
that  causes  discomfort,  inconvenience,  and  annoyance,  or  which,  per- 
haps, may  lessen  tlie  value  of  surrounding  property,  will  be  condemned 
and  abated  as  a  nuisance.  It  is  often  difficult  to  determine  the  bound- 
ary line  in  many  such  cases.  The  carrying  on  of  many  legitimate 
businesses  is  often  productive  of  more  or  less  annoyance,  discomfort, 
and  inconvenience,  and  ma}'  injure  surrounding  property  for  certain 
purposes,  and  still  constitute  no  invasion  of  the  rights  of  the  people  living 
in  the  vicinity.  Such  a  case  was  Gilbert  o.  Showerman.  23  Mich.  448. 
A  case  similar  in  its  facts  was  before  this  court  in  Robinson  v.  Baugh, 
31  Mich.  290,  which  was  distinguished  b}-  the  court  from  Gilbert  v. 
Showerman,     In  the  former  case  the  business  was  legitimate  and  neces- 


680  COMMONWEALTH   V.   MILLER.  [CIIAP.   V. 

sar}'.  The  suit  was  brought  in  equity  to  enjoin  the  business  at  the 
place  where  carried  on.  The  facts  were  that  smoke  and  soot  from  de- 
fendant's works  were  often  borne  b}'  the  wind  in  large  amounts  to  the 
premises  of  the  complainants,  and  sometimes  entered  their  dwellings  by 
the  chimneys,  and  through  cracks  by  the  doors  and  windows,  in  such 
measure  as  to  be  extremely  offensive  and  harmful,  and  the  noise  so 
great  as  to  be  disagreeable,  and  positivel}'  hurtful,  the  jar  annoying 
and  disturbing  the  sick,  and  in  some  cases  causing  substantial  damage 
to  dwellings.     The  court  laid  down  the  rule  (page  296)  as  follows:  — 

"  However  lawful  the  business  may  be  in  itself,  and  however  suitable 
in  the  abstract  the  location  may  be,  they  cannot  avail  to  authorize  the 
conductor  of  the  business  to  continue  it  in  a  wa}-  which  directly,  palpably, 
and  substantially  damages  the  property  of  others,  unless,  indeed,  the 
operator  is  able  to  plant  himself  on  some  peculiar  ground  of  grant, 
covenant,  license,  or  privilege  which  ought  to  prevail  against  complain- 
ants, or  on  some  prescriptive  right,  and  which  in  this  country  can 
rarely  happen." 

No  case  has  been  cited,  and  we  think  none  can  be  found,  sustain- 
mg  the  continuance  of  a  business  in  the  midst  of  a  populous  com- 
munity, which  constantly  produces  odors,  smoke,  and  soot  of  such  a 
noxious  character,  and  to  such  an  extent,  that  they  produce  headache, 
nausea,  vomiting,  and  other  pains  and  aches  injurious  to  health,  and 
taint  the  food  of  the  inhabitants. 

All  the  defendants  were  properly  convicted.     The  officers  of  the  com- 

f>^  r< '  pany  are  jointly  responsible  for  the  business.     It  is  not  necessary  to 

conviction  that  they  should  have  been  actually  engaged  in  work  upon  the 

'    ,.     J     premises.     The  work  is  carried  on  b}'  employees.     The  directors  and 

(}/  M      officers   are  persons  primarily  responsible,  and  therefore   the   proper 

ones  to  be  prosecuted.     A  fine  can  be  collected  against  the  defendant 

company,  and  therefore  it  is  subject  to  prosecution. 


COMMONWEALTH   v.   MILLER. 

Supreme  Court  of  Pennsylvania,  1890. 

[Reported  139  Pa.  77.]. 

Williams,  J.^  The  defendants  own  and  operate  a  refinery  where 
crude  petroleum  and  its  products  are  prepared  for  market.  There  are 
four  acres  within  the  enclosure  fronting  on  the  Ohio  river.  The  Pitts- 
burgh &  Western  Railroad  passes  in  front  of  it,  along  the  river's  edge. 
The  Cleveland  &  Pittsburgh  Railroad  runs  upon  the  street  directly  in 
the  rear.  The  city  of  Allegheny,  like  its  sister  city  Pittsburgh,  owes 
its  growth  and  prosperity  to  the  extent  of  its  manufacturing  interests, 

1  Part  of  the  opinion  only  is  given. 


SECT.  III.]  COMMONWEALTH   V.   MILLER.  681 

and  the  river  front  is  almost  wholly  given  over  to  these  great  industries. 
The  indictment  charges  that  the  defendants'  refinery-  is  a  public  and 
common  nuisance,  because  of  the  emission  therefrom  of  certain  noxious 
and  offensive  smells  and  vapors,  and  because  the  oils  and  gases  stored 
and  used  therein  are  inflammable,  explosive,  and  dangerous.  The  jury, 
under  the  instructions  of  the  court,  found  the  defendants  guilty,  and 
the  sentence  which  has  been  pronounced  requires  the  abatement  or 
destruction  of  a  plant  in  which  some  three  hundred  thousand  dollars 
are  said  to  be  invested,  and  which  gives  emplo3'ment  to  seventy-five 
men.  The  assignments  of  error  are  quite  numerous,  but  the  important 
questions  raised  are  few. 

The  first  four  assignments,  the  sixth,  ninth,  tenth,  and  sixteenth, 
may  be  considered  together,  as  the}'  relate  more  or  less  directly  to  the 
same  subject.  The  learned  judge  had  his  attention  directed  by  the 
written  points  to  the  definition  of  a  public  nuisance,  and  to  the  circum- 
stances under  which  the  defendants'  refinery  had  been  established  and 
maintained  for  many  years  ;  and  he  instructed  the  jur}-  that  the  charac- 
ter of  the  location  where  the  refinery  was  established,  the  nature  and 
importance  of  the  business,  the  length  of  time  it  had  been  in  operation, 
the  capital  invested,  and  the  influence  of  the  business  upon  the  growth 
and  prosperity  of  the  communit}-,  were  no  defence  to  an  indictment  for 
nuisance.  Among  other  expressions  used  b}'  him  are  the  following : 
"  It  is  no  defence  to  an  indictment  for  a  common  nuisance  that  the 
business  complained  of  has  been  in  operation  many  years."  ''I  do 
not  think  the  size  of  an  estabUshment  makes  any  difference."  And 
again  :  "  Neither  is  it  a  defence  in  any  measure  that  the  business  is  a 
useful  one,"  etc.  If  it  had  been  an  admitted  or  an  established  fact  that 
the  business  of  the  defendants  was  a  common  nuisance,  and  they  had 
attempted  to  justify*  its  maintenance,  these  instructions  would  have 
been  appropriate  ;  but,  the  question  before  the  jury  was  whether  the 
business  was  a  nuisance.  The  decision  of  that  question  depended  upon 
a  knowledge  of  all  the  circumstances  peculiar  to  the  business,  the  place, 
its  surroundings,  and  the  employments  of  the  persons  in  the  vicinity. 
While  no  one  of  these,  nor  all  together,  would  justify'  the  maintenance 
of  a  nuisance,  the}'  might  be  sufficient,  and  they  certainly  were  compe- 
tent evidence  from  which  the  jury  might  determine  whether  the  defend- 
ants' refinery  was  a  common  nuisance  at  the  place  where  it  was  located » 
and  this  was  tne  question  to  be  determined  by  the  trial.  They  might 
make,  therefore,  or  contribute  to  make,  a  defence  to  the  indictment  try- 
ing. This  distinction  between  an  effort  to  justify  an  admitted  or  estab- 
lished nuisance,  and  a  denial  that  the  business  complained  of  amounts 
to  a  nuisance,  was  evidently  in  the  mind  of  the  learned  judge,  but,  in 
the  haste  that  attends  jury  trials,  he  failed  to  place  it  clearly  before  the 
jury.  He  did  say  that  the  facts  referred  to  liad  "  weight,  and  are  to  be 
considered  in  determining  the  degree  of  the  injury  produced,  and 
whether  the  effects  are  so  annoying,  so  productive  of  inconvenience 


682 


COMMONWEALTH   V.    MILLER. 


[chap.  V. 


and  discomfort,  that  it  can  be  said  to  be  really  so  prejudicial  to  the 
public  as  to  be  a  nuisance,"  but.  following  an  explicit  statemeni  that 
these  same  facts  were  "  no  defence  to  an  indictment  for  erecting  and 
maintaining  a  nuisance,''  such  as  they  were  then  trying,  the  jur}'  was 
left  without  an  adequate  presentation  of  the  defence. 

That  such  facts  are  proper  for  consideration  and  may  make  a  defence, 
has  been  long  and  well  settled  :  Wood  on  Nuis..  §  430  The  same  rule 
was  applied  in  this  state  in  Huckenstine's  App..  70  Pa.  102;  and  in 
Commonwealth  v.  Reed,  34  Pa.  275.  The  character  of  the  business 
complained  of  must  be  determined  in  view  of  its  own  peculiar  location 
and  surroundings,  and  not  by  the  application  of  any  abstract  prin- 
ciple. Wood  r.  Sutcliffe,  16  Jur.  75.  In  the  case  last  cited,  Lord 
Cranworth  referred  to  a  case  at  nisi  prius,  in  which  he  had  instructed 
the  jury  to  consider,  not  only  whether  the  quantity  of  smoke  complained 
of  would  amount  to  a  nuisance,  considered  abstractly,  but  "■  whether  it 
is  a  nuisance  to  a  person  living  in  Shields,"  which  was  the  name  of  the 
town  in  which  the  business  was  conducted.  It  was  in  this  respect  that 
the  instructions  complained  of  in  the  first,  second,  and  thud  specifica- 
tions were  inadequate.  They  gave  the  general  rule  without  the  qualifi- 
cations which  the  situation  of  the  defendants'  refinery  entitled  him  to. 
The  right  to  pure  air  is,  in  one  sense,  an  absolute  one,  for  all  persons 
have  the  right  to  life  and  health,  and  such  a  contamination  of  the  air  as 
is  injurious  to  health  cannot  be  justified  ;  but,  in  another  sense,  it  is 
relative,  and  depends  upon  one's  surroundings.  People  who  live  in 
great  cities  that  are  sustained  by  manufacturing  enterprises  must  neces- 
sarily be  subject  to  many  annoyances  and  positive  discomforts,  by 
reason  of  noise,  dust,  smoke,  and  odors,  more  or  less  disagreeable, 
produced  by  and  resulting  from  the  business  that  supports  the  city. 
They  can  only  be  relieved  from  them  by  going  into  the  open  country. 
The  defendants  had  a  right  to  have  the  character  of  their  business 
determined  in  the  liglit  of  all  the  surrounding  circumstances,  including 
the  character  of  Alleghen}-  as  a  manufacturing  cit}-,  and  the  manner  of 
the  use  of  the  river  front  for  manufacturing  purposes.  If,  looked  at  in 
this  way,  it  is  a  common  nuisance,  it  should  be  removed  ;  if  not.  it  may 
be  conducted  witliout  subjecting  the  proprietors  to  the  pecuniar}'  loss 
which  its  removal  would  involve. 


SECT.  III.]  KEGINA   V.   EANDALL.  683 

REGmA  V.   RANDALL. 
Winchester  Assizes.     1842. 

[Reported  Car.  ^  M.    496.] 

Indictment  for  a  nuisance  in  building  and  continuing  a  wharf  in  the 
navigable  river  Itchen.     Plea,  not  guilty. 

For  the  prosecution,  it  was  proved  that  the  wharf  was  built  between 
high  and  low  water-mark,  and  projected  over  a  portion  of  the  river  on 
which  boats  formerly  passed. 

For  the  defence,  it  was  shown  that,  before  the  erection  of  the  wharf, 
there  was  no  means  of  unloading  trading  vessels  in  the  river,  except  by 
lightening  them  in  the  middle  of  the  stream,  and  then  getting  them  at 
high  water  on  to  the  mud  between  high  and  low  water-mark.  Since  the 
erection  of  the  wharf  in  question  such  vessels  had  been  unloaded  at  it, 
and  thus  the  centre  of  the  river  was  kept  clear,  and  the  general  navi- 
gation improved. 

It  was  contended  for  the  prosecution  that,  in  point  of  law,  the  ver- 
dict must  be  for  the  crown,  if  the  jury  should  find  that  the  wharf 
covered  any  part  of  the  soil  of  the  river  over  which  boats  formerly 
navigated.  For  the  defendant,  it  was  urged  that,  although  the  wharf 
covered  a  portion  of  the  river  over  which  boats  formerly'  went,  yet,  that 
it  was  for  the  jury  to  say  whether  in  fact  any  sensible  nuisance  or  im- 
pediment to  the  navigation  of  the  river  by  the  public  had  been  occa- 
sioned by  the  act  of  the  defendant;  and  that,  in  coming  to  their 
conclusion,  the  jury  were  justified  in  taking  into  consideration  the  effect 
produced  b}'  the  building  and  use  of  the  wharf  in  keeping  clear  the 
channel  of  the  river.  The  cases  of  Rex  v.  Russell,  6  B.  &  C.  566  ; 
Rex  V.  Ward,  4  A.  &  E.  384;  and  Rex  v.  Tindall,  6  A.  &  E.  143, 
were  cited. 

WiGHTMAN,  J.  (in  summing  up),  left  it  to  the  jury  to  say  whether 
the  wharf  itself  occasioned  any  hinderance  or  impediment  whatever  to 
the  navigation  of  tlie  river  by  an\'  description  of  vessels  or  boats ;  and 
told  them  that  they  were  not  to  take  into  their  consideration  the  cir- 
cumstance that  a  benefit  had  resulted  to  the  general  navigation  of  the 
river  by  the  mid-channel  being  kept  clear,  as  proved  b}-  the  defendant's 
witnesses. 

The  jury,  however,  could  not  agree  upon  their  verdict ;  and,  after 
being  locked  up  throughout  the  night,  were  discharged. 


684 


NOTE.  [chap.  7. 


REX  V.    ROBERT   OF   HERTHALE. 

Shropshire  Eyre.     1203. 

[1  Selden  Soc.  31.] 

Robert  of  Herthale,  arrested  for  having  in  self-defence  slain  Roger, 
Swein's  son,  who  had  slain  five  men  in  a  fit  of  madness,  is  committed 
to  the  sheriff  that  he  may  be  in  custody  as  before,  for  the  King  must 
be  consulted  about  this  matter. 


NOTE. 

Northampton  Iter.     1328. 
[Reported  Fitz.  Ahr.  Coron.  361.] 

Note  that  when  a  man  is  acquitted  before  the  justices  errant  for 
death  of  a  man  so>/  defendendo,  the  process  is  such  that  he  shall  have 
the  writ  of  the  Chief  Justice,  within  which  writ  shall  be  contained  all 
the  record  of  his  acquittal,  to  the  Chancellor,  who  shall  make  him  his 
writ  of  pardon  without  speaking  to  the  King  by  course  of  law.  Such  a 
man  is  bailable  after  the  acquittal,  etc. 


NOTE. 

1346. 

[Reported  Y.  B.  21  Edw.  3,  17.] 

Note  that  a  man  was  found  guilty  that  he  had  killed  another  se 
defendendo  ;  and  yet  his  chattels  shall  be  forfeited  though  his  life  shall 
be  saved.     And  the  cause  was  because  at  Common  Law  a  man  was 


SECT.  III.j  NOTE.  685 

hanged  in  such  a  case  as  above,  just  as  if  he  had  done  it  feloniously;  and 
though  the  king  now  by  the  statute^  has  released  his  life,  his  chattels 
remain  as  at  common  law. 


MEMORANDUM. 

1347. 

[Reported  Fitz.  Ahr.  Coron.  261.] 

Where  a  man  justifies  the   death   of  another,  as   by  warrant   to 
arrest  him,  and  he  will  not  obey  him,  or  that  he  comes  to  his  house  to  ,'^' 
commit  burglar}*  and  the  like,  if  the  matter  be  so  found,  the  justices  let 
him  go  quit  without  the  King's  pardon  ;  it  is  otherwise  where  a  man 
kills  another  by  misfortune,  etc. 


NOTE. 

Newgate.     1368. 

[Reported  43  Lib.  Assis.  31.] 

Note  that  at  the  deliver}'  made  at  Newgate  before  Knivet  and 
LoDEL,  JJ.,  it  was  found  b}-  the  verdict  that  a  chaplain  killed  a  man  se 
defendendo.     And  the  Judges  asked  how  ;  and  they  said  that  the  de-  * 

ceased  pursued  him  with  a  stick  and  hit  him  ;    but  the  other  struck         J'V^'-t?C 
back  and  killed  him.     And  they  said  that  the  defendant  might  have         --IlXiLL 
fled  from  the  assailant  if  he  would.     And  therefore  the  Judges  held  ' 

him  a  felon,  and  said  that  he  was  bound  to  flee  as  far  as  he  could 
to  save  his  life.     And  the  chaplain  was  adjudged  to  the  Ordinary,  etc. 

1  Statute  of  Gloucester,  6  Edw.  1,  ch.  9. 

The  King  commandeth  that  no  writ  shall  be  granted  out  of  the  Chancery  for  the 
death  of  a  man  to  enquire  whether  a  man  did  kill  another  by  misfortune,  or  in  his  own 
defence,  or  in  other  manner  without  felony  ;  but  he  shall  be  put  in  prison  until  the 
coming  of  the  justices  in  eyre  or  justices  assigned  to  the  gaol-delivery,  and  shall  put 
himself  upon  the  country  before  them  for  good  and  evil.  In  case  it  be  found  by  the 
country  that  he  did  it  in  his  defence,  or  by  misfortune,  then  by  the  report  of  the  jus- 
tices to  the  King,  the  King  shall  take  him  to  his  grace,  if  it  please  him. 


J  J 


686  MEMORANDUM.  [CHAP.  V. 

MEMORANDUM. 

Chancery.     1488. 
[Reported  Y.  B.  4  Hen.  7,  2.] 

In  the  chancery  it  was  moved  that  one  was  indicted  because  he 
killed  a  man  se  ipsum  defendendo,  etc.  And  the  Chancellor  said  that 
the  indictment  should  be  removed  into  the  King's  Bench,  and  that  he 
would  grant  a  pardon  of  common  grace  unto  the  party  according  to 
their  form. 

And  it  was  suggested  b}-  the  Sergeants  at  the  bar  that  there  was 
no  need  of  having  any  pardon  in  this  case  ;  for  here  the  Justices  would 
not  arraign  him,  but  dismiss  him,  &c.  ;  but  if  the  indictment  were  for 
felony  and  the  party  put  himself  upon  the  inquest  for  good  and  ill 
according  to  the  statute  of  Gloc.  c.  9,  then  if  the  inquest  found  that  he 
did  it  se  defendendo,  the  Justices  would  adjudge  him  to  prison  until  he 
had  a  pardon;  but  here  he  should  be  dismissed,  and  not  lose  his 
goods. 

Fairfax,  J.,  who  was  in  the  Chancery,  went  to  his  companions  and 
returned  and  said  that  their  custom  was  to  take  inquest  and  inquire 
whether  he  did  it  se  defendendo  or  not,  and  if  so  found,  he  lost  his 
goods,  etc.  ;  and  so  in  either  way  he  should  have  a  pardon  by  his 
opinion.  And  so  it  seemed  to  the  Chancellor  that  a  pardon  should  be 
granted. 

Note  the  opinion  of  the  Justices  of  the  Bench  against  the  Sergeants. 


Foster,  C.  L.  273.  Self-defence  naturally  falleth  under  the  head  of 
homicide  founded  in  necessit}',  and  ma}'  be  considered  in  two  different 
views.  It  is  either  that  sort  of  homicide  se  et  sua  defendendo^  which  is 
perfectly  innocent  and  justifiable,  or  that  which  is  in  some  measure 
blameable  and  barely  excusable.  The  want  of  attending  to  this  dis- 
tinction hath,  I  believe,  thrown  some  darkness  and  confusion  upon  this 
part  of  the  law. 

The  writers  on  the  Crown  Law,  who,  I  think,  have  not  treated  the 
subject  of  self-defence  with  due  precision,  do  not  in  terms  make  the 
distinction  1  am  aiming  at,  yet  all  agree  that  there  are  cases  in  which  a 
man  may,  without  retreating,  oppose  force  to  force,  even  to  the  death. 
This  I  call  justifiable  self-defence,  they  justifiable  homicide. 

They  likewise  agree  that  there  are  cases  in  which  the  defendant  can- 


SECT.  III.]  MEMORANDUM.  687 

not  avail  himself  of  the  plea  of  self-defence  without  showing  that  he 
retreated  as  far  as  he  could  with  safety,  and  then,  merely  for  the  pres- 
ervation of  his  own  life,  killed  the  assailant.  This  I  call  self-defence 
culpable,  but  through  the  benignity  of  the  law  excusable. 

In  the  case  of  justifiable  self-defence  the  injured  party  may  repel  force 
b}'  force  in  defence  of  his  person,  habitation,  or  propert}',  against  one 
who  manifestl}'  intendeth  and  endeavoreth  by  violence  or  surprise  to 
commit  a  known  felony  upon  either.  In  these  cases  he  is  not  obliged 
to  retreat,  but  ma}-  pursue  his  adversary  till  he  findeth  himself  out  of 
danger,  and  if  in  a  conflict  between  them  he  happeneth  to  kill,  such 
killing  is  justifiable. 

The  right  of  self-defence  in  these  cases  is  founded  in  the  law  of  nature, 
and  is  not,  nor  can  be,  superseded  by  an}-  law  of  society.  For  before 
civil  societies  Were  formed  (one  may  conceive  of  such  a  state  of  things, 
though  it  is  difficult  to  fix  the  period  when  civil  societies  were  formed), 
I  say  before  societies  were  formed  for  mutual  defence  and  preservation, 
the  right  of  self-defence  resided  in  individuals  ;  it  could  not  reside  else- 
where ;  and  since  in  cases  of  necessity,  individuals  incorporated  into 
society,  cannot  resort  for  protection  to  the  law  of  the  society,  that  law 
with  great  propriety  and  strict  justice  considereth  them,  as  still,  in  that 
instance,  under  the  protection  of  the  law  of  nature. 

I  will,  by  way  of  illustration,  state  a  few  cases,  which,  I  conceive, 
are  reducible  to  this  head  of  justifiable  self-defence. 

Where  a  known  felony  is  attempted  upon  the  person,  be  it  to  rob  or 
murder,  here  the  party  assaulted  may  repel  force  b}-  force  ;  and  even 
his  servant  then  attendant  on  him,  or  any  other  person  present  may 
interpose  for  preventing  mischief;  and  if  death  ensueth,  the  party 
so  interposing  will  be  justified.  In  this  case  nature  and  social  duty 
co-operate. 

A  woman  in  defence  of  her  chastit}-  may  lawfully  kill  a  person  attempt- 
ing to  commit  a  rape  upon  her.  The  injury  intended  can  never  be  repaired 
or  forgotten  ;  and  nature,  to  render  the  sex  amiable,  hath  implanted  in 
the  female  heart  a  quick  sense  of  honor,  the  pride  of  virtue,  which  kin- 
dleth  and  enfiameth  at  every  such  instance  of  brutal  lust.  Here  the  law 
of  self-defence  plainh-  coincideth  with  the  dictates  of  nature. 

An  attempt  is  made  to  commit  arson  or  burglary  in  the  habitation  ; 
the  owner,  or  any  part  of  his  family,  or  even  a  lodger  with  him  may 
lawfull}'  kill  the  assailants  for  preventing  the  mischief  intended.  Here 
likewise  nature  and  social  duty  co-operate. 

I  will  now  proceed  to  that  sort  of  self-defence  which  is  culpable  and 
through  the  benignity  of  the  law  excusable.  And  this  species  of  self- 
defence,  I  choose,  upon  the  authority  of  the  statute  of  Hen.  VIII.,  to 
distinguish  from  the  other  by  the  name  of  homicide  se  defendendo  upon 
chance-medley.  The  term  "  chance-medley  "  hatli  been  very  improperly 
applied  to  the  case  of  accidental  death,  and  in  vulgar  speech  we  gener- 
ally affix  that  single  idea  to  it.  But  the  ancient  legal  notion  of  homicide 
by  chance-medley  was  when  death  ensued  from  a  combat  between  the 


688  MEMORANDUM.  [CHAP.  V. 

parties  upon  a  sudden  quarrel.  How,  upon  the  special  circumstances 
of  the  case,  the  species  of  homicide  se  defendendo  which  I  am  now 
upon  is  distinguishable  from  that  species  of  felonious  homicide  which 
we  call  manslaughter  will  be  presently  considered. 

The  difference  between  justifiable  and  excusable  self-defence  appear- 
eth  to  me  to  be  plainh"  supposed  and  pointed  out  b}-  the  statute  I  have 
just  mentioned  ;  for,  after  reciting  that  it  had  been  doubted  whether  a 
person  killing  another  attempting  to  rob  or  murder  him  under  the  cir- 
cumstances there  mentioned  should  forfeit  goods  and  chattels,  "'As," 
proceedeth  the  statute,  "any  other  person  should  do  that  b\-  chance- 
medley  should  happen  to  kill  or  sla}-  any  other  person  in  his  or  their 
defence,"  it  enacteth  that  in  the  cases  first  mentioned  the  party  killing 
shall  forfeit  nothing,  but  shall  be  discharged  in  like  manner  as  if  he 
were  acquitted  of  the  death. 

He  who,  in  the  case  of  a  mutual  conflict,  would  excuse  himself  upon 
the  foot  of  self-defence,  must  show  that  before  a  mortal  stroke  given 
he  had  declined  any  farther  combat  and  retreated  as  far  as  he  could 
with  safety  ;  and  also  that  he  killed  his  adversary  through  mere  neces- 
sity-, and  to  avoid  immediate  death.  If  he  faileth  in  either  of  these 
circumstances  he  will  incur  the  penalties  of  manslaughter. 

The  authorities  I  shall  cite  will  serve  to  explain  these  principles,  and 
in  some  measure  fix  the  boundaries  between  the  cases  of  manslaughter 
and  excusable  self-defence. 

A.  being  assaulted  by  B.  returneth  the  blow,  and  a  fight  ensueth.  A. 
before  a  mortal  wound  given,  declineth  anj'  farther  conflict,  and  retreat- 
eth  as  far  as  he  can  with  safety,  and  then,  in  his  own  defence,  killeth 
B.  ;  this  is  excusable  self-defence  ;  though,  saith  Stanford,  A.  had  given 
several  blows  not  mortal  before  his  retreat. 

But  if  the  mortal  stroke  had  been  first  given,  it  would  have  been 
manslaughter. 

The  cases  here  put  suppose  that  the  first  assault  was  made  upon  the 
party  who  killed  in  his  own  defence.  But  as  in  the  case  of  manslaughter 
upon  sudden  provocations,  where  the  parties  fight  on  equal  terms,  all 
malice  apart,  it  mattereth  not  who  gave  the  first  blow  ;  so,  in  this  case 
of  excusable  self-defence,  I  think  the  first  assault  in  a  sudden  afl!'ray, 
all  malice  apart,  will  make  no  difference,  if  either  party  quitteth  the 
coml)at  and  retreateth  before  a  mortal  wound  be  given.  But  if  the  first 
assault  be  upon  malice,  which  must  be  collected  from  circumstances, 
and  the  assailant,  to  give  himself  some  color  for  putting  in  execution 
the  wicked  purposes  of  his  heart,  retreateth,  and  then  turneth  and  kill- 
eth, this  will  be  murder.  If  he  had  killed  without  retreating  it  would 
undoubtedly  have  been  so ;  and  the  craft  of  flying  rather  aggravateth 
than  excuseth,  as  it  is  a  fresh  indication  of  the  malitia  alread}'  mentioned, 
tlie  heart  deliberately  bent  upon  mischief. 

The  other  circumstance  necessary  to  be  proved  in  a  plea  of  self- 
defence  is  that  the  fact  was  done  from  mere  necessity,  and  to  avoid 
immediate  death.     To  this  purpose  I  will  cite  a  case  adjudged  upon 


SECT.  Ill,]  REGINA    V.    HEWLETT.  689 

great  deliberation.  It  was  the  case  of  one  Nailor,  which  came  on  at 
O.  B.  in  Apr.  1704,  before  Holt,  Tracy,  and  Bury. 

The  prisoner  was  indicted  for  the  murder  of  his  brother,  and  the  case 
upon  evidence  appeared  to  be,  that  the  prisoner  on  the  night  the  fact 
was  committed  came  home  drunk.  His  father  ordered  him  to  go  to 
bed,  which  he  refused  to  do  ;  whereupon  a  scuffle  happened  betwixt  the 
father  and  son.  The  deceased,  who  was  then  in  bed,  hearing  the  dis- 
turbance got  up,  and  fell  upon  the  prisoner,  threw  him  down,  and  beat 
him  upon  the  ground  ;  and  there  kept  him  down,  so  that  he  could  not 
escape  nor  avoid  the  blows  ;  and  as  they  were  so  striving  together  the 
prisoner  gave  the  deceased  a  wound  with  a  penknife  ;  of  which  wound 
he  died. 

The  judges  present  doubted,  whether  this  was  manslaughter  or  se 
defe7idendo^  and  a  special  verdict  was  found  to  the  effect  before  set 
forth. 

After  Michaelmas  term,  at  a  conference  of  all  the  judges  of  England, 
it  was  unanimously  holden  to  be  manslaughter  ;  for  there  did  not  appear 
to  be  QXiy  inevitable  necessity  so  as  to  excuse  the  killing  in  this  manner. 


ANONYMOUS. 

{Reported  Ketyng,  58.] 

If  a.  hath  malice  against  B.  and  meeteth  him  and  striketh  him,  and 
then  B.  draweth  at  A,,  and  A.  tiyeth  back  until  he  come  to  a  wall,  and 
then  kills  B.,  this  is  murder,  notwithstanding  his  flying  to  the  wall ;  for 
the  craft  of  flying  shall  not  excuse  the  malice  which  he  had,  nor  shall 
any  such  device  to  wreak  his  malice  on  another,  and  think  to  be  excused 
by  law,  avail  him  anything,  but  in  such  case  the  malice  is  enquirable, 
and  if  that  be  found  by  the  jury,  then  his  flight  is  so  far  from  excusing 
the  crime,  that  it  aggravates  it. 


REGINA  V.    HEWLETT. 
Bristol  Assizes.     1858. 

[Reported  1  Foster  and  Finlason,  91.] 

Wounding  with  intent.  The  prisoner  was  indicted  for  wounding 
with  intent  to  do  grievous  bodily  harm  to  the  prosecutor.  It  appeared 
that  the  prisoner,  with  a  knife,  struck  at  one  Withy.  The  prosecutor 
interfered  and  caught  the  blow  intended  for  Withy  on  his  arm. 

Crowder,  J.     This  will  not  sustain  the  charge  of  wounding  with 


690  ROWE    V.    UNITED    STATES.  [CHAP.  V. 

intent  to  do  grievous  bodily  harm  to  the  prosecutor,  but  he  may  be 
convicted  of  unlawfully  wounding. 

It  appeared  that  the  prosecutor,  Withy  and  two  women,  who  had 
been  drinking  together,  met  the  prisoner  at  midnight  on  the  highway. 
Some  words  passed  between  them,  when  Withy  struck  the  prisoner. 
The  prisoner  then  made  the  blow,  which  was  the  subject  of  the  charge. 
It  was  contended  for  him  that,  under  the  circumstances,  he  was  justi- 
fied in  doing  so. 

Crowdek,  J.  (to  the  jury).  Unless  the  prisoner  apprehended  rob- 
bery or  some  similar  offence,  or  danger  to  life  or  serious  bodily  danger 
(not  simply  being  knocked  down),  he  would  not  be  justified  in  using 
the  knife  in  self-defence. 

Nof;  guilty. 


ROWE  V.  UNITED   STATES. 

Supreme  Court  of  the  United  States,  1896. 

[Reported  1G4  U.  S.  546.] 

Harlan,  J.  We  think  that  these  portions  of  the  charge  (to  which  the 
accused  duly  excepted)  were  well  calculated  to  mislead  the  jury.  They 
expressed  an  erroneous  view  of  the  law  of  self-defense.  The  duty  of  the 
jury  was  to  consider  the  case  in  the  light  of  all  the  facts.  The  e\'idence 
on  behalf  of  the  government  tended  to  show  that  the  accused  sought 
a  difficulty  with  someone;  that  on  behalf  of  the  accused,  would  not 
justify  any  such  conclusion,  but  rather  that  he  had  the  reputation  of 
being  a  peaceable  and  law-abiding  man.  But  the  evidence  on  both 
sides  was  to  the  effect  that  the  deceased  us.ed  language  of  an  offensive 
character  for  the  purpose  of  provoking  a  difficulty  with  the  accused, 
or  of  subjecting  him  to  the  indignity  of  a  personal  insult.  The  offen- 
sive Avords  did  not,  it  is  true,  legally  justify  the  accused  in  what  he  did 
—  the  evidence  of  the  government  tending  to  show  that  "  he  kicked 
at  deceased,  hitting  him  ]ightl^  on  the  lower  part  of  the  leg";  that  on 
the  part  of  the  accused  tending  to  show  that  he  "kicked  at"  the  de- 
ceased and  "probably  struck  him  lightly."  According  to  the  CAndence 
of  the  defense,  the  accused  then  "  stepped  liack,  and  leaned  up  against 
the  counter,"  indicating  thereby,  it  may  be,  that  he  neither  desired  nor 
intended  to  pursue  the  matter  further.  If  the  jury  believed  the  evidence 
on  behalf  of  the  defense,  they  might  reasonably  have  inferred  from  the 
actions  of  the  accused  that  he  did  not  intend  to  make  a  \-iolent  or  dan- 
gerous personal  assault  upon  the  deceased,  but  only,  by  kicking  at  him 
or  kicking  him  lightly,  to  express  his  indignation  at  the  offensive  Ian- 


SECT.  III.]  ROWE    V.    UNITED    STATES.  691 

guage  of  the  deceased.  It  should  have  been  submitted  to  the  jury 
whether  the  act  of  the  accused  in  stepping  back  and  leaning  against  the 
counter,  not  in  an  attitude  for  personal  conflict,  was  intended  to  be,  and 
should  have  been  reasonably  interpreted  as  being,  a  withdrawal  by 
the  accused  in  good  faith  from  further  controversy  with  the  deceased. 
On  the  contrary,  the  court,  in  effect,  said  that  if,  because  of  words  used 
by  the  deceased,  the  accused  kicked  at  or  kicked  the  deceased,  how- 
ever lightly,  and  no  matter  how  offensive  those  words  were,  he  put 
himself  in  a  position  to  make  the  killing  manslaughter,  even  if  the 
taking  of  life  became,  by  reason  of  the  suddenness,  rapidity,  and  fierce- 
ness of  the  assault  of  the  deceased,  absolutely  necessary  to  save  his  own. 
By  numerous  quotations  from  adjudged  cases,  the  court,  by  every 
form  of  expression,  pressed  upon  the  jury  the  proposition  that  "a  per- 
son who  has  slain  another  cannot  urge  in  justification  of  the  killing  a 
necessity  produced  by  his  own  unlawful  and  wrongful  acts."  But  that 
abstract  principle  has  no  application  to  this  case,  if  it  be  true  —  as  the 
evidence  on  behalf  of  the  defense  tended  to  show  —  that  the  first  real 
provocation  came  from  the  deceased  when  he  used  towards  the  accused 
language  of  an  offensive  character,  and  that  the  accused  immediately 
after  kicking  at  or  lightly  kicking  the  deceased,  signified  by  his  conduct 
that  he  no  longer  desired  controversy  with  his  adversary;  whereupon 
the  deceased,  despite  the  efforts  of  the  accused  to  retire  from  further 
contest,  sprang  at  the  latter,  with  knife  in  hand,  for  the  purpose  of  tak- 
ing life,  and  would  most  probably  have  accomplished  that  object,  if 
the  accused  had  not  fired  at  the  moment  he  did.  Under  such  circum- 
stances, did  the  law  require  that  the  accused  should  stand  still,  and 
permit  himself  to  be  cut  to  pieces,  under  the  penalty  that  if  he  met  the 
unlawful  attack  upon  him  and  saved  his  own  life,  by  taking  that  of  his 
assailant,  he  would  be  guilty  of  manslaughter?    We  think  not. 

If  a  person,  under  the  provocation  of  offensive  language,  assaults  the 
speaker  personally,  but  in  such  a  way  as  to  show  that  there  is  no  in- 
tention  to  do  him  serious  bodily  harm,  and  then  retires  under  such  cir- 
cumstances as  show  that  he  does  not  intend  to  do  anything  more,  but 
in  good  faith  withdraws  from  further  contest,  his  right  of  self-defense 
js.restored  when  the  person  assaulted,  in  violation  of  law,  pursues  him 
with  a  deadly  weapon  and  seeks  to  take  his  life  or  do  him  great  bodily 
harm.  In  Parker  v.  The  State,  88  Alabama,  4,  7,  the  court,  after  advert- 
ing to  the  general  rule  that  the  ag'gressor  cannot  be  heard  to  urge  in  his 
justification  a  necessity  for  the  killing  which  was  produced  by  his  own 
wrongful  act,  said:  "This  rule,  however,  is  not  of  absolute  and  univer- 
sal application.  An  exception  to  it  exists  in  cases  where,  although  the 
defendant  originally  provoked  the  conflict,  he  withdraws  from  it  in 
good  faith,  and  clearly  announces  his  desire  for  peace.  If  he  be  pursued 
after  this,  his  right  of  self-defense,  though  once  lost,  re\nves.  'Of 
course,'  says  Mr.  ^Yharton,  in  referring  to  this  modification  of  the  rule, 
'there  must  be  a  real  and  bona  fide  .surrender  and  withdrawal  on  his 


d 


692  ROWE    V.    UNITED    STATES.  [CHAP.  V. 

part;  for,  if  there  be  not,  then  he  will  continue  to  be  regarded  as  the 
aggressor.'  1  Wharton's  Cr.  Law  (9th  ed.),  §  486.  The  meaning  of  the 
principle  is  that  the  law  will  always  leave  the  original  aggressor  an 
opportunity  to  repent  before  he  takes  the  life  of  his  adversary.  Bishop's 
Cr.  Law  (7th  ed.),  §  87L"  Recognizing  this  exception  to  be  a  just  one, 
the  court  properly  said,  in  addition :  "  Due  caution  must  be  observed 
by  courts  and  juries  in  its  application,  as  it  involves  a  principle  which 
is  very  liable  to  abuse.  The  question  of  the  good  or  bad  faith  of  the 
retreating  party  is  of  the  utmost  importance,  and  should  generally  be 
submitted  to  the  jury  in  connection  with  the  fact  of  retreat  itself, 
especially  where  there  is  any  room  for  conflicting  inferences  on  this 
point  from  the  evidence."  Both  parties  to  a  mutual  combat  are  wrong- 
doers, and  the  law  of  self-defense  cannot  be  invoked  by  either,  so  long 
as  he  continues  in  the  combat.  But,  as  said  by  the  Supreme  Court  of 
Iowa  in  State  v.  Dillon,  74  Iowa,  653,  659,  if  one  "  actually  and  in  good 
faith  withdraws  from  the  combat,  he  ceases  to  be  a  wrongdoer;  and 
if  his  adversary  have  reasonable  ground  for  holding  that  he  has  so  with- 
drawn, it  is  sufficient,  even  though  the  fact  is  not  clearly  e\anced." 
See  also  1  Bishop's  New  Crim.  Law,  §  702;  People  v.  Robertson,  67 
California,  646,  650;  Stoffer's  Case,  15  Ohio  St.,  47.  In  Wharton  on 
Homicide,  §  483,  the  author  says  that  "though  the  defendant  may 
have  thus  provoked  the  conflict,  yet,  if  he  withdrew  from  it  in  good 
faith  and  clearly  announced  his  desire  for  peace,  then,  if  he  be  pur- 
sued, his  rights  of  self-defense  revive." 

We  do  not  mean  to  say  that  the  jury  oirght  to  have  found  that  the 
accused,  after  kicking  the  deceased  lightly,  withdrew  in  good  faith 
K  from  further  contest  and  that  his  conduct  should  have  been  so  inter- 
?*  preted.  It  was  for  the  jury  to  say  whether  the  withdrawal  was  in  good 
faith,  or  was  a  mere  device  by  the  accused  to  obtain  some  advantage 
of  his  adversary.  But  we  are  of  opinion  that,  under  the  circumstances, 
they  might  have  found  that  the  accused,  although  in  the  wrong  when 
X  he  kicked  or  kicked  at  the  deceased,  did  not  provoke  the  fierce  attack 
vp'^  /  made  upon  him  by  the  latter,  with  knife  in  hand,  in  any  sense  that 
would  deprive  him  altogether  of  the  right  of  self-defense  against  such 
attack.  If  the  accused  did,  in  fact,  withdraw  from  the  combat,  and 
intended  so  to  do,  and  if  his  conduct  should  have  been  reasonably  so 
interpreted  by  the  deceased,  then  the  assault  of  the  latter  with  a  deadly 
weapon,  with  the  intent  to  take  the  life  of  the  accused  or  to  do  him 
great  bodily  harm,  entitled  the  latter  to  the  benefit  of  the  principle 
announced  in  Beard  v.  United  States,  158  U.  S.  550,  564,  in  which  case 
it  was  said :  "  The  defendant  was  where  he  had  a  right  to  be  when  the 
deceased  advanced  upon  him  in  a  threatening  manner  and  with  a 
deadly  weapon;  and  if  the  accused  did  not  provoke  the  assault,  and 
had  at  the  time  reasonable  grounds  to  believe,  and  in  good  faith  be- 
lieved, that  the  deceased  intended  to  take  his  life  or  to  do  him  great 
bodily  harm,  he  was  not  obliged  to  retreat,  nor  to  consider  whether  he 


SECT,  HI.]  ROWE    V.   UNITED    STATES.  693 

could  safely  retreat,  but  was  entitled  to  stand  his  ground  and  meet  any 
attack  made  upon  him  with  a  deadly  weapon,  in  such  a  way  and  with 
such  force  as,  under  all  the  circumstances,  he,  at  the  moment,  hon-- 
estly  believed,  and  had  reasonable  grounds  to  believe,  was  necessary 
to  save  his  own  life  or  to  protect  himself  from  great  bodily  injury." 

The  charge,  as  above  quoted,  is  liable  to  other  objections.  The? 
court  said  that  both  the  accused  and  the  deceased  had  a  right  to  be 
in  the  hotel,  and  that  the  law  of  retreat  in  a  case  like  that  is  different 
from  what  it  would  be  if  they  had  been  on  the  outside.  Still,  the 
court  said  that,  under  the  circumstances,  both  parties  were  under  a  duty 
to  use  all  reasonable  means  to  avoid  a  collision  that  would  lead  to  a 
deadly  conflict,  such  as  keeping  out  of  the  affray,  or  by  not  going  into 
it,  or  "by  stepping  to  one  side";   and  if  the  accused  could  have  saved  ( 

his  life,  or  protected  himself  against  great  bodily  harm,  by  inflicting  a 
less  dangerous  wound  than  he  did  upon  his  assailant,  or  "if  he  could 
have  paralyzed  that  arm,"  without  doing  more  serious  injury,  the  law 
commanded  him  to  do  so.  In  other  words,  according  to  the  theory  of 
the  charge,  although  the  deceased  sprang  at  the  accused,  with  knife  in 
hand,  for  the  purpose  of  cutting  him  to  pieces,  yet  if  the  accused  could 
have  stepped  aside  or  paralyzed  the  arm  of  his  assailant,  his  killing 
the  latter  was  not  in  the  exercise  of  the  right  of  self-defense.  The  ac- 
cused was  where  he  had  a  right  to  be,  and  the  law  did  not  require  him 
to  step  aside  when  his  assailant  was  rapidly  advancing  upon  him  with 
a  deadly  weapon.  The  danger  in  which  the  accused  was,  or  believed 
himself  to  be,  at  the  moment  he  fired  is  to  some  extent  indicated  by  t  -  ., 
the  fact,  proved  by  the  government,  that  immediately  after  he  disabled  ^t^  U 
his  assailant  (who  had  two  knives  upon  his  person)  he  said  that  he,  the 
accused,  was  himself  mortally  wounded  and  wished  a  physician  to  be 
called.  The  accused  was  entitled,  so  far  as  his  right  to  resist  the  attack 
was  concerned,  to  remain  where  he  was,  and  to  do  whatever  was  neces- 
sary or  what  he  had  reasonable  grounds  to  believe  at  the  time  was 
necessary,  to  save  his  life  or  to  protect  himself  from  great  bodily  harm. 
And  under  the  circumstances,  it  was  error  to  make  the  case  depend 
in  whole  or  in  part  upon  the  inquiry  whether  the  accused  could,  by 
stepping  aside,  have  avoided  the  attack,  or  could  have  so  carefully 
aimed  his  pistol  as  to  paralyze  the  arm  of  his  assailant  without  more 
seriously  wounding  him. 

Without  referring  to  other  errors  alleged  to  have  been  committed, 
the  judgment  below  is  reversed  and  the  case  is  remanded  for  a  new 
trial. 

Reversed. 

Brown  and  Peckham,  JJ.,  dissented. 


t)94  STOPFER   V.    STATE.  "^  [CHAP.  V. 

STOPFER  V.   STATE. 
Supreme  Court  of  Ohio.     1864. 

[Reported  15  Ohio  State,  47.] 

Ranney,  J.^  From  the  bill  of  exceptions  it  appears  that,  after  the 
state  had  given  evidence  tending  to  prove  that  the  plaintiff  made  an 
assault  upon  Webb  in  the  street,  with  the  intent  to  murder  him  with  a 
knife,  and  that  in  the  conflict  which  ensued,  Webb  was  killed  b}-  him, 
the  plaintiff  in  error  gave  evidence  tending  to  prove  that  he  desisted 
from  the  conflict,  declined  further  combat,  and  retreated  rapidly  a  dis- 
tance of  one  hundred  and  fifty  feet,  and  took  refuge  in  the  house  of  a 
stranger,  where  he  shut  and  held  the  door  ;  that  Webb,  his  brother,  and 
one  Dingman  immediately  pursued,  throwing  stones  at  him,  and  crying 
"■  Kill  him  !  "  as  he  retreated,  and,  foreiblv  opening  the  door,  they  entered 
the  house  and  assaulted  him,  and  in  the  conflict  which  immediately 
ensued,  Webb  was  killed.      './'  ^'       •■-•■■    » 

Upon  this  state  of  the  evidence,  counsel  for  the  plaintiff  in  error 
requested  the  court  to  instruct  the  jury  that  the  killing  of  Webb  would 
be  excusable,  although  the  accused  should  have  made  the  assault  upon 
him  with  the  malicious  intent  of  killing  him,  if  the  jury  should  find  that, 
before  Webb  had  received  any  injury,  the  accused  desisted  from  the 
conflict,  and  in  good  faith  declined  further  combat,  and  retreated  to  a 
place  which  he  might  reasonably  regard  as  a  place  of  securit}',  and  that 
Webb  and  those  in  concert  with  him,  immediately  pursued  and  forcibly 
entered  such  place,  and  there  made  an  assault  upon  the  accused,  in  such 
manner  as  to  warrant  him  in  believing  that  his  life  was  in  danger  at  the 
hands  of  Webb,  and  without  deliberation  or  malice,  and  to  save  his 
own  life,  he  took  that  of  Webb. 

This  instruction  the  court  refused  to  give,  but,  in  substance,  charged 
the  jury  that,  under  such  circumstances,  the  accused  would  be  guilty 
of  manslaughter,  provided  they  "should  regard  the  conduct  of  Webb, 
from  the  commencement  of  the  conflict  in  the  street  to  the  time  of  the 
conflict  in  the  house,  as  continuous." 

The  diff'erence  between  the  instruction  asked  and  that  given  is  easily 
appreciated.  The  one  makes  the  conduct  of  the  accused  in  declining, 
in  good  faith,  further  conflict,  and  retreating  to  a  place  of  supposed 
security  from  the  attacks  of  Webb,  decisive  of  his  right  to  defend  him- 
self there,  when  afterward  assaulted  by  Webb  and  those  in  concert 
with  him,  and,  if  necessar}"  to  save  his  own  life,  without  malice  or  pre- 
meditation to  take  that  of  Webb  :  while  the  other  makes  the  conduct 
of  Webb  the  test  whether  the  conflict  had  so  far  terminated  as  to  restore 
the  accused  to  his  right  of  self-defence,  and  denies  him  this  right,  if  the 
•conduct  of  Webb,  from  the  conflict  in  the  street  to  that  in  the  house, 

1  Part  of  the  case,  not  involviii<,'  a  question  of  justification,  is  omitted. 


SECT.  III.]  STOPFER   V.    STATE.  695 

was  to  be  regarded  as  continuous.  "We  are  not  permitted  to  regard 
this  i-etreat  of  the  accused,  as  either  colorable,  or  made  to  gain  an 
advantage,  with  a  view  of  renewing  the  assault  upon  Webb.  The  in- 
struction requested  assumed  that  it  must  have  been  made  with  the  bo7ia 
fide  purpose  of  abandoning  the  conflict ;  and  in  the  instruction  given, 
the  jurj-  were  charged  that  if  the  attack  upon  Webb  in  the  street  was 
murderous,  the  fact  that  the  accused  "  repented  and  fted,  .  .  .  intend- 
ing to  quit  the  combat,  and  abandoning  all  murderous  purpose,"  would 
have  no  further  effect  than  to  mitigate  the  crime  to  manslaughter. 

Upon  the  precise  question  made  in  this  case,  verj*  little  light  is  thrown 
by  actual  adjudications  ;  and  it  is  not  to  be  denied  that  some  difference 
of  opinion  has  obtained  among  elementar}-  writers  upon  criminal  law. 
The  learned  and  humane  Sir  Matthew  Hale  has  expressed  an  opinion 
upon  the  very  point,  in  accordance  with  the  instruction  requested  in  the 
court  below.  He  says  :  "  Suppose  that  A.  by  malice  makes  a  sudden 
assault  upon  B.,  who  strikes  again,  and  pursuing  hard  upon  A.,  A. 
retreats  to  the  wall,  and,  in  saving  his  own  life  kills  B.  ;  some  have 
held  this  to  be  murder,  and  not  se  defendendo,  because  A.  gave  the  first 
assault.  But  Mr.  Dalton  thinketh  it  to  be  se  defendendo,  though  A. 
made  the  first  assault,  either  with  or  without  malice,  and  then  retreated. 
It  seems  to  me,  that  if  A.  did  retreat  to  the  wall  upon  a  real  intent  to 
save  his  life,  and  then  merely  in  his  own  defence  killed  B.,  that  it  is  se 
defendendo,  and  with  this  agrees  Stamford's  P.  C.  lib.  1,  c.  7,  fol.  15a. 
But  if  on  the  other  side,  A.,  knowing  his  advantage  of  strength,  or  skill, 
or  weapon,  retreated  to  the  wall  merely  as  a  design  to  protect  himself, 
under  the  shelter  of  the  law,  as  in  his  own  defence,  but  reall}'  intending 
to  kill  B.,  then  it  is  murder  or  manslaughter,  as  the  circumstance  of 
the  case  requires."     1  Hale's  P.  C.  479,  480. 

Sergeant  Hawkins,  however,  thinks  this  opinion  too  favorable,  and 
insists  that  the  one  who  gives  the  first  blow  cannot  be  permitted  to 
kill  the  other,  even  after  retreating  to  the  wall ;  because  the  necessity 
to  which  he  is  at  last  reduced  was  brouirht  upon  himself.  1  Hawk. 
P.  C.  87. 

Later  English  writers  have  generally  contented  themselves  with  stat- 
ing the  opposing  opinions  of  these  eminent  authors,  without  adding 
anything  material  upon  the  subject.  4  Bl.  Com.  186  ;  1  Russ.  on 
Crimes,  662. 

In  our  own  country,  Mr.  Bishop,  in  his  work  on  criminal  law,  has 
examined  the  whole  subject  with  learning  and  ability,  and  coinciding, 
as  we  understand  him,  in  the  opinion  expressed  by  Lord  Hale,  he  thus 
expresses  his  own  conclusion:  "The  space  for  repentance  is  always 
left  open.  And  when  the  combatant  does  in  good  faitli  withdraw  as  far 
as  lie  can,  really  intending  to  abandon  the  conflict,  and  not  merely  to 
gain  fresh  strength  or  some  new  advantage  for  an  attack,  but  the  other 
will  pursue  him,  then,  if  taking  life  becomes  inevitable  to  save  life,  he 
is  justified."     2  Bishop  on  Crim.  Law,  s.  556. 

But  if  the  question  cannot  be  said  to  be  settled  upon  authority,  we 


696  STOPFER   V.    STATE.  [CHAP.  V. 

think  its  solution  upon  principle  very  obvious,  in  the  light  of  doctrines 
upon  which  all  are  agreed.  It  is  ver^'  certain  that  while  the  party  who 
first  commences  a  malicious  assault  continues  in  the  combat,  and  does 
not  put  into  exercise  the  duty  of  withdrawing  in  good  faith  from  the 
place,  although  he  may  be  so  fiercely  pressed  that  he  cannot  retreat,  or 
is  thrown  upon  the  ground  or  driven  to  the  wall,  he  cannot  justify 
taking  the  life  of  his  adversary-,  however  necessary  it  may  be  to  save 
his  own  ;  and  must  be  deemed  to  have  brought  upon  himself  the  neces- 
sity of  killing  his  fellow-man.  "  For  otherwise,"  as  said  hy  Ch.  J. 
Hale,  "  we  should  have  all  cases  of  murder  or  manslaughter,  by  way 
of  interpretation,  turned  into  se  deferulendo.'"     1  Hale,  P.  C.  482. 

There  is  every  reason  for  saying  that  the  conduct  of  the  accused, 
relied  upon  to  sustain  such  a  defence,  must  have  been  so  marked,  in 
the  matter  of  time,  place,  and  circumstance,  as  not  onl}'  clearly  to 
evince  the  withdrawal  of  the  accused,  in  good  faith,  from  the  combat, 
but  also  such  as  fairh'  to  advise  his  adversary-  that  his  danger  had 
passed,  and  to  make  his  conduct  thereafter,  the  pursuit  of  vengeance, 
rather  than  measures  taken  to  repel  the  original  assault.  But  when  this 
is  made  to  appear,  we  know  of  no  principle,  however  criminal  the  pre- 
vious conduct  of  the  accused  may  have  been,  which  allows  him  to  be 
hunted  down  and  his  life  put  in  jeopardy,  and  denies  him  the  right  to 
act  upon  that  instinct  of  self-preservation  which  spontaneously"  arises 
alike  in  the  bosoms  of  the  just  and  the  unjust.  There  is  no  ground  for 
saying  that  this  right  is  forfeited  by  previous  misconduct ;  nor  did  the 
court  below  proceed  upon  an}'  such  idea,  since  the  jury  were  charged, 
that  if  the  conflict  which  ensued  upon  the  first  assault  had  ended,  and 
a  new  one  was  made  by  Webb  and  his  associates  in  the  house,  the 
accused,  under  reasonable  apprehension  of  loss  of  life  or  great  bodil}' 
harm,  would  be  justified  in  taking  the  life  of  his  assailant.  The  error 
of  the  court  consisted  in  supposing  that  whatever  might  be  done  b\-  the 
accused  to  withdraw  himself  fi'om  the  contest,  the  conflict  would  never 
end  so  long  as  Webb  made  continuous  efforts  to  prolong  it.  If  this  is 
a  sound  view  of  the  matter,  the  condition  of  the  accused  would  not 
have  been  bettered  if  he  had  fled  for  miles  and  had  finally  fallen  down 
with  exhaustion,  provided  Webb  was  continuous  in  his  efforts  to  over- 
take him.  But  this  view  is  consistent  with  neither  the  letter  nor  spirit 
of  the  legal  principle.  A  conifict  is  the  work  of  at  least  two  persops, 
and  when  one  has  wholly  withdrawn  from  it.  that  conflict  is  ended  ;  and 
it  cannot  be  prolonged  b}^  the  eflTorts  of  him  who  remains  to  bring  on 
another.  It  is  ver}'  true,  that  the  original  assault  may  have  aroused  the 
passions  which  impel  the  pursuer  to  take  vengeance  upon  his  adversary  ; 
and  if  death  should  ensue  from  his  act,  it  might  be  entirely  suflScient  to 
mitigate  the  crime.  But  it  would  still  be  a  crime,  and  the  law  cannot 
for  a  moment  tolerate  the  execution  of  vengeance  by  private  parties. 
If  this  were  allowed,  such  passions  might  be  as  effectually  aroused  by 
words  as  blows  ;  and,  instead  of  the  principle,  so  vital  to  the  peace  of 
society,  that  the  law  alone  must  be  relied  upon  for  the  redress  of  all 


SECT.  III.]  STOPFER    V.   STATE.  697 

injuries,  we  should  have  avengers  of  injuries,  real  or  supposed,  execut- 
ing their  punishments  upon  victims  stripped  of  all  legal  power,  what- 
ever might  be  the  necessity,  of  defending  their  own  lives.  It  is  needless 
to  sa}-  that  such  a  course  would  be  alike  destructive  to  public  order 
and  private  security,  and  would  be  substituting  for  the  empire  of  the 
laws,  a  system  of  force  and  violence. 

A  line  of  distinction  must  be  somewhere  drawn,  which,  leaving  the 
originator  of  a  combat  to  the  necessary  consequences  of  his  illegal  and 
malicious  conduct,  shall  neither  impose  upon  him  punishments  or  dis- 
abilities unknown  to  the  law,  nor  encourage  his  adversar}-  to  wreak 
vengeance  upon  him,  rather  than  resort  to  the  legal  tribunals  for  redress  ; 
and  we  think,  upon  principle  and  the  decided  weight  of  authority,  it  lies 
precisely  where  we  have  already  indicated.  While  he  remains  in  the 
conflict,  to  whatever  extremity  he  may  be  reduced,  he  cannot  be  ex- 
cused for  taking  the  life  of  his  antagonist  to  save  his  own.  In  such 
case,  it  may  be  rightfully  and  truthfully  said  that  he  brought  the  neces- 
sit}'  upon  himself  by  his  own  criminal  conduct.  But  when  he  has  suc- 
ceeded in  wholly  withdrawing  himself  from  the  contest,  and  that  so 
palpabl}'  as,  at  the  same  time,  to  manifest  his  own  good  faith  and  to 
remove  any  just  apprehension  from  his  adversarv,  he  is  again  remitted 
to  his  right  of  self-defence,  and  ma}'  make  it  effectual  b}-  opposing  force 
to  force,  and,  when  all  other  means  have  failed,  may  legally  act  upon 
the  instinct  of  self-preservation,  and  save  his  own  life  by  sacrificing  the 
life  of  one  who  persists  in  endangering  it. 

If  these  views  are  correct,  their  application  to  the  case  under  consi- 
deration, is  very  obvious.  Both  the  instruction  requested,  and  that 
given,  are  based  upon  the  hypothesis  that  the  accused  had,  in  good 
faith  and  abandoning  all  criminal  purpose,  withdrawn  from  the  combat ; 
that  he  had  not  only  retreated  to  the  wall,  but  behind  the  wall ;  and  had 
not  only  gone  from  the  view  of  his  adversary-,  but  to  a  place  of  sup- 
posed security  from  his  attacks.  In  all  this,  his  conduct  was  strictly 
lawful.  In  the  language  of  the  books,  he  "  had  actually  put  into  exer- 
cise the  dut\'  of  withdrawing  from  the  place."  It  is  verj-  true  that  the 
evidence  tended  to  implicate  him  in  a  very  serious  crime  in  the  first 
attack  upon  Webb,  for  which  his  subsequent  conduct  could  not  atone, 
and  for  which  he  was  then,  and  still  is,  Uable  to  prosecution  and  punish- 
ment ;  but  when  Webb  and  his  associates  afterwards  pursued  and  at- 
tacked him,  they  were  wholly  in  the  wrong,  and  necessarily  took  upon 
themselves  all  the  hazards  of  such  an  unlawful  enterprise. 


698  PEOPLE    V.    BUTTON.  [CHAP.  V. 

PEOPLE  V.  BUTTON. 

Supreme  Court  of  California.     1895. 

[Reported  106  Cal.  628.] 

Garoutte,  J.  The  appellant  was  charged  with  the  crime  of  murder 
and  convicted  of  manslaughter.  He  now  appeals  from  the  judgment 
and  order  denj'ing  his  motion  for  a  new  trial. 

For  a  perfect  understanding  of  the  principle  of  law  involved  in  this 
appeal  it  becomes  necessary  to  state  in  a  general  way  the  facts  leading 
up  to  the  homicide.  As  to  the  facts  thus  summarized  there  is  no 
material  contradiction.  The  deceased,  the  defendant,  and  several  other 
parties  were  camped  in  the  mountains.  They  had  been  drinking,  and, 
except  a  boy,  were  all  under  the  influence  of  liquor  more  or  less,  the 
defendant  to  some  extent,  the  deceased  to  a  great  extent.  The  de- 
ceased was  lying  on  the  ground  with  his  head  resting  upon  a  rock, 
when  a  dispute  arose  between  him  and  the  defendant,  and  the  defend- 
ant thereupon  kicked  or  stamped  him  in  the  face.  The  assault  was 
a  vicious  one,  and  the  injuries  of  deceased  occasioned  thereb}'  most 
serious.  One  eye  was  pi'obably  destroj'ed,  and  some  bones  of  the  face 
broken.  An  expert  testified  that  these  injuries  were  so  serious  as 
likel}'  to  produce  in  the  injured  man  a  dazed  condition  of  mind,  impair- 
ing the  reasoning  faculties,  judgment,  and  powers  of  perception.  Im- 
mediatel}'  subsequent  to  this  assault  the  defendant  went  some  distance 
from  the  camp,  secured  his  horse,  returned,  and  saddled  it,  with  the 
avowed  intention  of  leaving  the  camp  to  avoid  further  trouble.  The 
time  thus  occupied  in  securing  his  horse  and  preparing  for  departure 
ma}'  he  estimated  at  from  five  to  fifteen  minutes.  The  deceased's  con- 
duct and  situation  during  the  absence  of  defendant  is  not  made  plain 
by  the  evidence,  but  he  was  probably  still  lying  where  assaulted.  At 
this  period  of  time,  the  deceased  advanced  upon  defendant  with  a  knife, 
which  was  taken  from  him  by  a  bystander,  whereupon  he  seized  his 
gun  and  attempted  to  shoot  the  defendant,  and  then  was  himself  sliot 
by  the  defendant  and  immediatel}'  died.  There  is  also  some  further 
evidence  that  deceased  ordered  his  dog  to  attack  the  defendant,  and 
that  defendant  shot  at  the  dog,  but  this  evidence  does  not  appear  to 
be  material  to  the  question  now  under  consideration. 

Upon  this  state  of  facts  the  court  charged  the  jur}'  as  to  the  law  of 
the  case,  and  declared  to  them  in  various  forms  the  principle  of  law 
which  is  fairly  embodied  in  the  following  instruction:  "One  who  has 
sought  a  combat  for  the  purpose  of  taking  advantage  of  another,  maj' 
afterward  endeavor  to  decline  any  further  struggle,  and,  if  he  really 
and  in  good  faith  does  so  before  killing  the  person  with  whom  he 
sought  the  combat  for  .such  purpose,  he  may  justify  the  killing  on  the 
same  ground  as  he  might  if  he  had  not  originally  sought  such  combat 
for  such  purpose,  provided  that  you  also  believe  that  his  endeavor  was 


SECT.  III.]  PEOPLE    V.   BUTTON.  699 

of  such  a  character,  so  indicated  as  to  have  reasonably  assured  a  rea- 
sonable man  that  he  was  endeavoring  in  good  faith  to  decline  further 
combat,  unless  you  further  believe  that  in  the  same  combat  in  which 
the  fatal  shot  was  fired,  and  prior  to  the  defendant  endeavoring  to 
cease  further  attack  or  quarrel,  the  deceased  received  at  the  hands  of 
the  defendant  such  injuries  as  deprived  him  of  his  reason  or  his  capacity 
to  receive  impressions  regarding  defendant's  design  and  endeavor  to 
cease  further  combat." 

It  is  to  that  portion  of  the  foregoing  instruction  relating  to  the 
capacity  of  the  deceased  to  receive  impressions  caused  b}'  the  defend- 
ant's attack  upon  him  that  appellant's  counsel  has  directed  his  assault ; 
and  our  attention  will  be  addressed  to  its  consideration.  The  recital 
of  facts  indicates,  to  some  extent  at  least,  that  the  assault  upon  de- 
ceased was  no  part  of  the  combat  subsequently  arising  in  which  he 
lost  his  life  ;  yet  the  events  were  so  closelv  connected  in  point  of  time 
that  the  court  was  justified  in  submitting  to  the  jury  the  question  of 
fact  as  to  whether  or  not  the  entire  trouble  was  but  one  affray  or 
combat.  Section  197  of  the  Penal  Code,  wherein  it  savs,  in  effect,  that 
the  assailant  must  really  and  in  good  faith  endeavor  to  decline  any  fur- 
ther struggle  before  he  is  justified  in  taking  life,  is  simply  declarative 
of  the  common  law.  It  is  but  the  reiteration  of  a  well-settled  principle, 
and  in  no  wise  broadens  and  enlarges  the  right  of  self-defence  as  de- 
clared by  courts  and  text-writers  ever  since  the  days  of  Lord  Hale.  It 
follows  that  the  declaration  of  the  code  above  cited  gives  us  no  light 
upon  the  matter  at  hand,  and,  from  an  examination  of  many  books 
and  cases,  we  are  unable  to  find  a  single  authority  directly  in  point 
upon  the  principle  of  law  here  involved.  It  is  thus  apparent  that  the 
question  is  both  interesting  and  novel. 

The  point  at  issue  may  be  made  fairl}*  plain  by  the  following  illustra- 
tions :  If  a  partv  should  so  violently  assault  another  by  a  blow  or  stroke 
upon  the  head  as  to  render  that  party  incapable  of  understanding  or 
appreciating  the  conditions  surrounding  him,  and  the  party  assailed 
should  thereupon  pursue  the  retreating  assailant  for  many  hours  and 
miles  with  a  deadly  weapon  and  with  deadly  intent,  and  upon  overtak- 
ing him  should  proceed  to  kill  him,  would  the  first  assailant,  the  party 
retreating,  be  justified  in  taking  the  then  aggressor's  life  in  order  to 
save  his  own?  In  other  words,  did  the  first  assault,  producing  the 
effect  that  it  did  debar  defendant  (after  retreating  under  the  circum- 
stances above  depicted)  from  taking  his  opponent's  life,  even  though 
that  opponent  at  the  time  held  a  knife  at  his  throat  with  deadly  intent; 
or,  putting  it  more  conciseh',  did  the  aggressor  by  his  first  assault  for- 
feit his  life  to  the  party  assaulted?  Or,  viewing  the  case  from  the 
other  side,  should  a  man  be  held  guiltless  who  without  right  assaults 
another  so  viciously  as  to  take  away  his  capacity  to  reason,  to  deprive 
him  of  his  mind,  and  then  kill  him,  because,  when  so  assaulted,  his 
assailant  is  unable  to  understand  that  the  attacking  party  is  retreating 
and  has  withdrawn  from  the  combat  in  good  faith?    In  other  words, 


700  PEOPLE    V.    BUTTON.  [CHAP.  V. 

ma}'  a  defendant  so  assault  another  as  to  deprive  him  of  his  mind,  and 
then  kill  him  in  self-defence  when  he  is  in  such  a  condition  that  he  is 
unable  to  understand  that  his  assailant  has  withdrawn  in  good  faith 
from  the  combat? 

In  order  for  an  assailant  to  justif}'  the  killing  of  his  adversary  he 
must  not  only  endeavor  to  really  and  in  good  faith  withdraw  from  the 
combat,  but  he  must  make  known  his  intentions  to  his  adversary.  His 
secret  intentions  to  withdraw  amount  to  nothing.  They  furnish  no 
guide  for  his  antagonist's  future  conduct.  The}'  indicate  in  no  way 
that  the  assault  may  not  be  repeated,  and  afford  no  assurance  to  the 
party  assailed  that  the  need  of  defence  is  gone.  This  principle  is  fairly 
illustrated  in  Hale's  Pleas  of  the  Crown,  page  482,  where  the  author 
says :  "  But  if  A  assaults  B  first,  and  upon  that  assault  B  re-assaults 
A.  and  that  so  fiercely  that  A  cannot  retreat  to  the  wall  or  other  no?i 
ultra  without  danger  of  his  life,  nay,  though  A  falls  upon  the  ground 
upon  the  assault  of  B  and  then  kills  B,  this  shall  not  be  interpreted  to 
>>e  se  defendendo."  The  foregoing  principle  is  declared  sound  for  the 
reason  that,  though  A  was  upon  the  ground  and  in  great  danger  of  his 
life  at  the  time  he  killed  B,  still  he  was  the  assailant,  and  at  the  time 
of  the  killing  had  done  nothing  to  indicate  to  the  mind  of  B  that 
he  had  in  good  faith  withdrawn  from  the  combat,  and  that  B  was  no 
longer  i'n  danger.  In  Stoffer  v.  State,  15  Ohio  St.  47,  86  Am.  Dec. 
470,  in  speaking  to  this  question,  the  court  said:  "There  is  every 
reason  for  saying  that  the  conduct  of  the  accused  relied  upon  to  sustain 
such  a  defence  must  have  been  so  marked  in  the  matter  of  time,  place, 
and  circumstance  as  not  only  clearly  to  evince  the  withdrawal  of  the 
accused  in  good  faith  from  the  combat,  but  also  such  as  fairly  to  advise 
his  adversary  that  his  danger  had  passed,  and  to  make  his  conduct 
thereafter  the  pursuit  of  vengeance  ,  rather  than  measures  taken  to 
repel  the  original  assault."  It  is  also  said  in  State  v.  Smith,  10  Nev. 
106,  citing  the  Ohio  case:  "  A  man  who  assails  another  with  a  deadly 
weapon  cannot  kill  his  adversary  in  self-defence  until  he  has  fairly 
notified  him  by  his  conduct  that  he  has  abandoned  the  contest ;  and, 
if  the  circumstances  are  such  that  he  cannot  so  notify  him,  it  is  his 
fault,  and  he  must  take  the  consequences." 

It  is,  therefore,  made  plain  that  knowledge  of  the  withdrawal  of  the 
assailant  in  good  faith  from  the  combat  must  be  brought  home  to  the 
assailed.  He  must  be  notified  in  some  way  that  danger  no  longer 
threatens  him,  and  that  all  fear  of  further  harm  is  groundless.  Yet, 
in  considering  this  question,  the  assailed  must  be  deemed  a  man  of 
ordinary  understanding;  he  must  be  gauged  and  tested  by  the  common 
rule  —  a  reasonable  man;  his  acts  and  conduct  must  be  weighed  and 
measured  in  the  light  of  that  test,  for  such  is  the  test  applied  wherever 
the  right  of  self-defence  is  made  an  issue.  His  naturally  demented 
condition  will  not  excuse  him  from  seeing  that  his  assailant  has  with- 
drawn from  the  attack  in  good  faith.  Neither  his  passion  nor  his 
cowardice  will  be  allowed  to  blind  him  to  the  fact  that  his  assailant  is 


SECT.  III.]  PEOPLE    v.    BUTTON.  701 

running  awaj^  and  all  danger  is  over.  If  the  subsequent  acts  of  the 
attacking  party  be  such  as  to  indicate  to  a  reasonable  man  that  he 
in  good  faith  has  withdrawn  from  the  combat,  they  must  be  held  to  so 
indicate  to  the  party  attacked.  Again,  the  [)arty  attacked  must  also 
act  in  good  faith.  He  must  act  in  good  faith  toward  the  law,  and 
allow  the  law  to  punish  the  offender.  He  must  not  continue  the  com- 
bat for  the  purpose  of  wreaking  vengeance,  for  then  he  is  no  better 
than  his  adversary.  The  law  will  not  allow  him  to  sav,  "  I  was  not 
aware  that  my  assailant  had  withdrawn  from  the  combat  in  good  faith," 
if  a  reasonable  man  so  placed  would  have  been  aware  of  such  with- 
drawal. If  the  party  assailed  has  eyes  to  see,  he  must  see  ;  and,  if  he 
has  ears  to  hear,  be  must  hear.  He  has  no  right  to  close  his  eyes  or 
deaden  his  ears. 

This  brings  us  directly  to  the  consideration  of  the  point  in  the  case 
raised  by  the  charge  of  the  court  to  the  jury.  While  the  deceased  had 
eyes  to  see  and  ears  to  hear  he  had  no  mind  to  comprehend,  for  his 
mind  was  taken  from  him  by  the  defendant  at  the  first  assault.  Through- 
out this  whole  affray  it  must  be  conceded  that  the  deceased  was  guilty 
of  no  wrong,  no  violation  of  the  law.  When  he  attempted  to  kill  the 
defendant  he  thought  he  was  acting  in  self-defence,  and  according  to 
his  lights,  he  was  acting  in  self-defence.  To  be  sure,  those  lights, 
supplied  by  a  vacant  mind,  were  dim  and  unsatisfactory,  yet  they 
were  all  the  deceased  had  at  the  time,  and  not  only  were  fur- 
nished by  the  defendant  himself,  but  the  defendant  in  furnishing  them 
forcibly  and  unlawfully  deprived  the  deceased  of  others  which  were 
perfect  and  complete.  But  where  does  the  defendant  stand  ?  It  can- 
not be  said  that  he  was  guilty  of  no  wrong,  no  violation  of  the  law.  It 
was  he  who  made  the  vicious  attack.  It  was  he  who  was  guilty  of  an 
unprovoked  and  murderous  assault.  It  was  he  who  unlawfully  brought 
upon  himself  the  necessity  for  killing  the  deceased.  It  cannot  be  pos- 
sible that  in  a  combat  of  this  character  no  crime  has  been  committed 
against  the  law.  Yet  the  deceased  has  committed  no  offence.  Neither 
can  the  defendant  be  prosecuted  for  an  assault  to  commit  murder,  for 
the  assault  resulted  in  the  commission  of  a  homicide  as  a  part  of  the 
affray.  For  these  reasons  we  consider  that  the  defendant  cannot  be 
held  guiltless. 

Some  of  the  earlier  writers  hold  that  one  who  gives  the  first  blow 
cannot  be  permitted  to  kill  the  other,  even  after  retreating  to  the  wall, 
for  the  reason  that  the  necessity  to  kill  was  brought  upon  himself.  (1 
Hawkins'  Pleas  of  the  Crown,  87.)  While  the  humane  doctrine,  and 
especially  the  modern  doctrine,  is  more  liberal  to  the  assailant,  and 
allows  him  an  opportunit}'  to  withdraw  from  the  combat,  if  it  is  done  in 
good  faith,  yet  it  would  seem  that  under  the  circumstances  here  pre- 
sented the  more  rigid  doctrine  should  be  applied.  The  defendant  not 
only  brought  upon  himself  the  necessity  for  the  killing,  but,  in  addition 
thereto,  brought  upon  himself  the  necessity'  of  killing  a  man  wholly 
innocent  in  the  e^^es  of  the  law ;  not  only  wholly  innocent  as  beino^  a 


702  PEOFLE    V.   BUTTON.  [CHAP.  V. 

person  naturally  non  compos^  but  wholly  innocent  by  being  placed  in 
this  unfortunate  condition  of  mind  b}-  the  act  of  the  defendant  himself. 
We  conclude,  therefore,  that  the  instruction  contains  a  sound  principle 
of  law.  The  defendant  was  the  first  wrongdoer ;  he  was  the  onh' 
wrongdoer;  he  brought  on  the  necessit}'  for  the  killing,  and  cannot  be 
allowed  to  plead  that  necessity  against  the  deceased,  who  at  the  time 
was  Jion  compos  b\'  reason  of  defendant's  assault.  The  citations  we 
have  taken  from  Hale,  the  Ohio  case,  and  the  Nevada  case,  all  declare 
that  the  assailant  must  notify  the  assailed  of  his  withdrawal  from  the 
combat  in  good  faith,  before  he  will  be  justified  in  taking  life.  Here 
the  defendant  did  not  so  notifj'the  deceased.  He  could  notnotifj'  him, 
for  by  his  own  unlawful  act  he  had  placed  it  out  of  his  power  to  give  the 
deceased  such  notice.  Under  these  circumstances  he  left  no  room  in 
his  case  for  the  plea  of  self-defence. 

The  court  gave  the  following  instruction  to  the  jury  as  to  the  law 
bearing  upon  the  facts  of  the  case  :  "  And  no  man,  b}*  his  own  lawless 
acts,  can  create  a  necessit}'  for  acting  in  self-defence,  and  then,  upon 
killing  the  person  with  whom  he  seeks  the  diificulty,  interpose  the  plea 
of  self-defence,  subject  to  the  qualification  next  hereinafter  set  out. 
The  plea  of  necessit}'  is  a  shield  for  those  only  who  are  without  fault  in 
occasioning  it  and  acting  under  it.  The  court  instructs  the  jury  that 
if  you  are  satisfied  that  there  was  a  quarrel  between  the  defendant 
and  deceased,  in  which  the  defendant  was  the  aggressor  and  first  as- 
saulted the  deceased  by  means  or  force  likely  to  produce  and  actuall}' 
producing  great  bodil}'  injur}'  to  the  deceased,  and  that  the  defendant 
thereafter  in  the  same  quarrel  fatally  shot  the  deceased,  then  you  must 
find  the  defendant  guilty,  subject  to  this  qualification." 

This  instruction  appears  to  have  been  given  subject  to  some  qualifi- 
cation, and  as  tn  the  extent  and  character  of  the  qualification  the  record 
is  not  plain.  But,  whatever  it  may  have  been,  the  vice  of  the  instruc- 
tion could  not  be  taken  away.  The  instruction  is  bad  law,  and  no 
explanation  or  qualification  could  validate  it.  It  is  not  true  that  the 
plea  of  necessity  is  a  shield  for  those  only  who  are  without  fault  in 
occasioning  it  and  acting  under  it.  As  we  have  already  seen,  this  is 
the  rigid  doctrine  declared  by  Sergeant  Hawkins,  but  not  the  humane 
doctrine  of  Lord  Hale  and  modern  authority.  The  latter  portion  of  the 
instruction  is  in  direct  conflict  with  the  Stoffer  case,  already  cited, 
where  the  declaration  of  the  same  principle  in  a  somewhat  different 
form  caused  a  reversal  of  the  judgment.  It  was  there  said  :  ''If  this 
is  a  sound  view  of  the  matter,  the  condition  of  the  accused  would  not 
have  been  bettered  if  he  iiad  fled  for  miles,  and  had  finally  fallen  down 
with  exhaustion,  provided  Webb  was  continuous  in  his  efforts  to  over- 
take him.  But  this  view  is  consistent  with  neither  the  letter  nor  the 
spirit  of  the  legal  principle."  The  instruction  assumes  that,  if  the 
defendant  was  the  aggressor,  the  quarrel  could  subsequently  assume  no 
form  or  condition  whereby  the  defendant  would  be  justified  in  taking 
the  life  of  the  party  assailed.     The  law  of  self-defence  is  to  the  contrary, 


SECT.  III.]  PEOPLE   V.    BUTTON.  703 

and  is  clearly  recognized  to  the  contrary  by  the  provision  of  the 
Penal  Code  to  which  we  have  already  referred. 

The  court  also  gave  the  jury  the  following  instruction  to  guide 
them  in  their  deliberations :  "  If  you  find  from  the  evidence  that,  prior 
to  the  time  of  the  shooting  of  the  deceased  by  the  defendant,  they  had 
a  quarrel  and  altercation,  and  that  the  defendant  stamped  or  kicked  the 
deceased  in  the  face,  and  that  defendant  thereafter  really  and  in  good 
faith,  although  he  was  the  assailant,  endeavored  to  decline  any  further 
struggle  before  the  homicide  was  committed,  and  that  [after  the  first 
assault  had  ceased,  and  there  had  an  interval  elapsed  between  said  first 
assault  and  the  final  assault,  making  said  assaults  respective!}-,  although 
in  some  degree  related  to  each  other,  yet  substantially  distinct  trans- 
actions, each  attended  with  its  own  separate  circumstances]  the  deceased 
procured  his  gun  and  made  such  an  attempt  to  shoot  defendant  as  gave 
the  defendant  reasonable  ground  to  apprehend  and  fear  that  the  de- 
ceased was  about  to  take  his  life,  or  do  him  great  bodil}^  injur}',  and 
that,,  acting  under  such  reasonable  apprehension  alone,  defendant 
shot  the  deceased,  then  ^'ou  will  acquit  the  defendant ;  and  this  will  be 
3'our  duty,  notwithstanding  the  defendant  may  have  been  in  the  wrong 
in  first  assailing  or  attacking  the  deceased."  That  portion  of  the 
charge  inclosed  in  brackets  embodied  a  modification  of  the  original 
charge,  as  asked  by  counsel,  and  we  think  should  not  have  been  in- 
serted. It  had  a  tendency  to  mislead  the  jury,  and  the  instruction  was 
perfectly  sound  without  it.  The  question  as  to  the  capacity  of  the 
deceased's  mind  to  understand  and  appreciate  was  not  an  element  in- 
volved in  this  charge,  and  with  that  the  court  was  not  then  dealing  ; 
but  by  the  modification  it  deprived  the  defendant  of  the  right  to  go 
before  the  jur}'  upon  the  plea  of  self-defence,  if  there  was  but  one 
assault  which  led  up  to  the  homicide.  The  right  of  the  defendant  to 
act  in  self-defence  was  in  no  way  dependent  upon  the  commission  of 
two  assaults.  If  there  was  but  one  assault  which  caused  the  combat, 
even  though  that  assault  was  a  part  of  the  combat,  and  was  made  by 
the  defendant,  still  he  had  the  right  of  self-defence  if  his  subsequent 
conduct  was  such  as  to  indicate  to  the  assaulted  party  that  he  had 
withdrawn  in  good  faith  from  the  struggle.  The  effect  of  the  modifica- 
tion was  to  plainl\-  intimate  to  the  jur}'  that,  if  the  whole  affra}'  was  but 
one  connected  quarrel  or  altercation,  then  the  defendant,  under  no  pos- 
sible setof  circumstances,  could  be  justified  in  law  in  killing  hisadversar}'. 
This  is  wrong.  As  to  the  true  solution  of  the  question  by  the  jury 
which  the  court  was  then  discussing,  it  was  entirely  immaterial  whether 
or  not  there  was  one  or  two  assaults. 

We  think  the  questions  we  have  discussed  dispose  of  all  material 
matters  raised  upon  the  appeal. 

For  the  foregoing  reasons  the  judgment  and  order  are  reversed  and 
the  cause  remanded  for  a  new  trial. 


704  COMMONWEALTH    V.   DRUM.  [CHA.P.  V. 


COMMONWEALTH   v.   DRUM. 
Court  of  Oyer  and  Terminer,  Pennsylvania.     1868. 

[Reported  58  Pa.  9.] 

William  Drum  was  charged  in  the  Court  of  Quarter  Sessions  of 
Westmoreland  county  for  the  murder  of  David  Mobigan.  A  true  bill 
having  been  found  by  the  grand  jury  of  that  court,  it  was  certified  into 
the  Court  of  Oyer  and  Terminer  of  the  same  county. 

Agnew,  J.,  charged  the  jury  as  follovys.^  .  .  . 

The  previous  occurrences  on  Monday  night  and  Thursday  night  fur- 
nished no  justification  or  even  excuse  to  Mohigan  in  making  the  attack 
upon  the  prisoner  on  Thursda}'  night  at  the  saloon.  This  attack  con- 
stituted a  sufficient  ground  on  part  of  the  prisoner  to  defend  himself  in 
a  proper  manner.  But  this  defence,  as  I  have  before  said,  must  not 
exceed  the  reasonable  bounds  of  the  necessity.  Here  the  jury  must 
attend  to  this  important  distinction.  The  argument  of  the  defence  is, 
that  when  the  slayer  is  not  in  fault —  is  not  fighting  at  the  time,  or  has 
given  up  the  fight  —  and  then  slays  his  adversary,  he  is  vixcusable  as  in 
self-defence.  But  though  this  may  be  the  case,  it  is  not  always  so. 
The  true  criterion  of  self-defence,  in  such  a  case,  is,  whether  there  ex- 
isted such  a  necessity  for  killing  the  adversary  as  required  the  slayer  to 
do  it  in  defence  of  his  life  or  in  the  preservation  of  his  person  from 
great  bodily  harm.  If  a  man  approaches  another  with  an  evident  inten- 
tion of  fighting  him  with  his  fists  only,  and  where,  under  the  circum- 
stances, nothing  would  be  likely  to  eventuate  from  the  attack  but  an 
ordinary  beating,  the  law  cannot  recognize  the  necessity  of  taking  life 
with  a  deadly  weapon.  In  such  a  ease  it  would  be  manslaughter ;  and 
if  the  deadly  weapon  was  evidently  used  with  a  murderous  and  bad- 
hearted  intent,  it  would  even  be  murder.  But  a  blow  or  blows  are  just 
cause  of  provocation,  and  if  the  circumstances  indicated  to  the  slayer  a 
plain  necessity  of  protecting  himself  from  great  bodily  injury,  he  is 
excusable  if  he  slays  his  assailant  in  an  honest  purpose  of  saving 
himself  from  this  great  harm. 

The  right  to  stand  in  self-defence  without  fleeing  has  been  strongly 
asserted  by  the  defence.  It  is  certainly  true  that  every  citizen  may 
rightfully  traverse  the  street,  or  may  stand  in  all  proper  places,  and 
need  not  flee  from  every  one  who  chooses  to  assail  him.  Without  this 
freedom  our  liberties  would  be  worthless.  But  the  law  does  not  apply 
this  right  to  homicide.  The  question  here  does  not  involve  the  right  of 
merely  ordinary  defence,  or  the  right  to  stand  wherever  he  may  right- 
fully be,  but  it  concerns  the  right  of  one  man  to  take  the  life  of  another. 
Ordinary  defence  and  the  killing  of  another  evidently  stand  upon  differ- 
ent footing.  When  it  comes  to  a  question  whether  one  man  shall  flee 
or  another  shall  live,  the  law  decides  that  the  former  shall  rather  flee 
than  that  the  latter  shall  die. 


1  Only  90  much  of  the  charge  as  is  concerned  with  the  question  of  self-defence  is 
given.  —  Ei) 


^s 


SECT.  III.]  STATE    V.    DONNELLY.  '  705 


STATE  V.  DONNELLY. 

Supreme  Court  of  Iowa.     1886. 

[Reported  69  Iowa,  705.] 

Adams,  C.  J.^  —  The  defendant  shot  his  father,  Patrick  Donnelly, 
with  a  shot-gun,  causing  a  wound  of  which  he  died  about  two  days 
afterwards.  The  deceased  had  become  very  angry  with  the  defendant, 
and  at  time  of  the  firing  of  the  fatal  shot  was  pursuing  the  defendant 
with  a  pitchfork,  and  the  circumstances  were  such  that  we  think  that 
the  jury  might  have  believed  that  he  intended  to  take  the  life  of  the 
defendant.  On  the  other  hand,  the  circumstances  were  such  that  we 
think  that  the  jur}-  might  have  believed  that  the  defendant  could  have 
escaped,  and  fully  protected  himself  by  retreating,  and  that  he  had 
reasonable  ground  for  so  thinking. 

The  court  gave  an  instruction  in  these  words  :  *'  You  are  instructed 
that  it  is  a  general  rule  of  the  law  that,  where  one  is  assaulted  by 
another,  it  is  the  dut}-  of  the  person  thus  assaulted  to  retire  to  what  is 
termed  in  the  law  a  wall  or  ditch  before  he  is  justified  in  repelling  such 
assault  in  taking  the  life  of  his  assailant.  But  cases  frequently  arise 
where  the  assault  is  made  with,  a  dangerous  or  deadly  weapon,  and  in 
so  fierce  a  manner  as  not  to  allow  the  party  thus  assaulted  to  retire 
without  manifest  danger  to  his  life  or  of  great  bodily  injury  ;  in  such 
cases  he  is  not  required  to  retreat."  The  defendant  assigns  the  giving 
of  this  instruction  as  error.  He  contends  that  the  court  misstated  the 
law  in  holding,  by  implication,  that  he  is  excused  from  doing  so  only 
where  it  would  manifestl}'  be  dangerous  to  attempt  it.  His  position  is, 
that  the  assailed  is  under  obligation  to  retreat  onl}-  where  the  assault  is 
not  felonious,  and  that  where  it  is  felonious,  as  the  evidence  tends  to 
show  in  this  case,  he  may  stand  his  ground  and  kill  his  assailant,  what- 
ever his  means  of  retreat  and  escape  miglit  be,  provided  only  he  had 
reasonable  cause  for  believing  that  if  he  stood  his  ground,  and  did  not 
kill  his  assailant,  his  assailant  would  kill  him,  or  inflict  a  great  bodily 
injury.  Under  this  theory  and  the  evidence,  the  jury  might  have  found 
that  the  defendant  was  justified  in  killing  his  father,  and  that,  too,  even 
though  there  had  been  other  evidence  showing  that  his  father  was  so 
old  and  decrepit  that  the  defendant  could  have  escaped  him  by  simply 
walking  away  from  him.  It  is,  perhaps,  not  to  be  denied  that  the 
defendant's  theory  finds  some  support  in  text-books  and  decisions; 
but  in  our  opinion  it  cannot  be  approved.  This  court  has,  to  be  sure, 
held  that  a  person  assailed  in  his  own  house  is  not  bound  to  retreat, 
though  b}'  doing  so  he  might  manifestly  secure  his  safet}'.  State  v. 
Middleham,  62  Iowa,  150.  While  there  is  some  ground  for  contending 
that  the  rule  does  not  fully  accord  with  the  sacredness  which  in  later 
years  is  attached  to  human  life,  the  course  of  decisions  appeared  to  be 

^  Part  of  the  opinion  only  is  given. 


706  STATE    V.    DONNELLY.  [CHAP.  V. 

such  as  not  to  justify  a  departure  from  it.  The  rule  for  which  the 
defendant  contends  seems,  so  far  as  it  Ihids  support  in  the  authorities, 
to  be  based  upon  the  idea  that,  where  a  person  attempts  to  commit  a 
fel6ny,  it  is  justifiable  to  take  the  offender's  life  if  that  is  the  only  way 
in  which  he  can  be  prevented  from  consummating  the  felony  attempted. 
But  where  a  person  is  assailed  by  another  who  attempts  to  takes  his 
life,  or  inflict  great  bodily  injury,  and  the  assailed  can  manifestly  secure 
safety  by  retreating,  then  it  is  not  necessary  to  take  the  life  of  the 
assailant  to  prevent  the  consummation  of  the  felony  attempted.  In 
Roscoe,  Crim.  Ev.  768,  note,  the  annotator  says:  "When  a  man 
expects  to  be  attacked,  the  right  to  defend  himself  does  not  arise  until 
he  has  done  everything  to  avoid  that  necessity,"  —  citing  People  v. 
Sullivan,  7  N.  Y.  396  ;  Mitchell  v.  State,  22  Ga.  211  ;  Lyon  v.  State, 
id.  399  ;  Cotton  v.  State,  31  Miss.  504  ;  People  v.  Hurley,  8  Cal.  390; 
State  V.  Thompson,  9  Iowa,  188;  U.  S.  r.  Mingo,  2  Curt.  1.  In  our 
opinion  the  court  did  not  err  in  giving  the  instruction  in  question.^ 

1  In  State  v.  Bartlett,  1 70  Mo.  658,  668,  Sherwood,  P.  J.,  said :  "  Defendant,  when 

first  assaulted  and  beaten  by  Edwards  on  the  street,  was  not  bound  to  retreat  to  his 
office.  He  had  a  right  to  be  where  he  was,  and  the  wrong  of  Edwards  in  assaulting 
and  beating  him  there,  could  not  deprive  him  of  that  right  and  so  this  court  has, 
in  effect,  decided.  [State  r.  Evans,  124  Mo.  397;  see,  also.  State  v.  Hudspeth,  150 
Mo.  ioc.  cit.  33,  and  cases  cited.]  Because  the  right  to  go  where  one  will  without  let  or 
hindrance,  despite  of  threats  made,  necessarily  implies  the  right  to  stay  where  one  will 
without  let  or  hindrance.  These  remarks  are  controlled  by  the  thought  of  a  lawful 
right  to  be  in  the  particular  locality  to  which  he  goes,  or  in  which  he  stays. 

"  It  is  true,  human  life  islacred,  but  so  is  human  liberty  ;  one  is  as  dear  in  the  eye  of 
the  law  as  the  other,  and  neither  is  to  give  way  and  surrender  its  legal  status  in  order 
that  the  other  may  exclusively  exist,  supposing  for  a  moment  such  an  anomaly  to  be 
possible.  In  other  words,  the  wrongful  and  violent  act  of  one  man  shall  not  abolish 
or  even  temporarily  suspend  the  lawful  and  constitutional  right  of  his  neighbor.  And 
this  idea  of  the  non-necessity  of  retreating  from  any  locality  where  one  has  the  right 
to  be,  is  growing  in  favor,  as  all  doctrines  based  upon  sound  reason  inevitably  will, 
and  has  found  voice  and  expression  elsewhere." 


I 


SECT.  III.J  BEARD    V.    UNITED    STATES.  707 

BEARD   ..  UNITED    STATES.       I  0.f^,,^,^_   ^c^mtC^  £^,j 


Supreme  Court  of  the  United  States.     1894. 
[Reported  158  U.  S.  550.] 

Harlan,  J.^  .  .  .  The  court  below  committed  an  error  of  a  more 
serious  character  when  it  told  the  jury,  as  in  effect  it  did  b}-  different 
forms  of  expression,  that  if  the  accused  could  have  saved  his  own  life 
and  avoided  taking  the  life  of  Will  Jones  by  retreating  from  and 
getting  out  of  the  way  of  the  latter  as  he  advanced  upon  him,  the  law 
made  it  his  duty  to  do  so  ;  and  if  he  did  not,  when  it  was  in  his  power 
to  do  so  without  putting  his  own  life  or  body  in  imminent  peril,  he  was 
guilty  of  manslaughter.  The  court  seemed  to  think  if  the  deceased 
had  advanced  upon  the  accused  while  the  latter  was  in  his  dwelling- 
house  and  under  such  circumstances  as  indicated  the  intention  of  the 
former  to  take  life  or  inflict  great  bodily  injur}-,  and  if,  without  retreat- 
ing, the  accused  had  taken  the  life  of  his  assailant,  having  at  the  time 
reasonable  grounds  to  believe,  and  in  good  faith  believing,  that  his  own 
life  would  be  taken  or  great  bodily  harm  done  him  unless  he  killed  the 
accused,  the  case  would  have  been  one  of  justifiable  homicide.  To 
that  proposition  we  give  our  entire  assent.  But  we  cannot  agree  that 
the  accused  was  under  any  greater  obligation,  when  on  his  own 
premises,  near  his  dwelling-house,  to  retreat  or  run  away  from  his 
assailant,  than  he  would  have  been  if  attacked  within  his  dwelling- 
house.  The  accused  being  where  he  had  a  right  to  be,  on  his  own 
premises,  constituting  a  part  of  his  residence  and  home,  at  the  time  the 
deceased  approached  him  in  a  threatening  manner,  and  not  having  by 
language  or  by  conduct  provoked  the  deceased  to  assault  him,  the 
question  for  the  jury  was  whether,  without  fleeing  from  his  adversary 
he  had,  at  the  moment  he  struck  the  deceased,  reasonable  grounds  to 
believe,  and  in  good  faith  believed,  that  he  could  not  save  his  life  or 
protect  himself  from  great  bodily  harm  except  by  doing  what  he  did, 
namely,  strike  the  deceased  with  his  gun,  and  thus  prevent  his  further 
advance  upon  him.  Even  if  the  jury  had  been  prepared  to  answer 
this  question  in  the  affirmative  —  and  if  it  had  been  so  answered,  the 
defendant  should  have  been  acquitted  —  they  were  instructed  that  the 
accused  could  not  properly  be  acquitted  on  the  ground  of  self-defence 
if  they  believed  that,  by  retreating  from  his  adversar}',  b}'  "  getting 
out  of  the  way,"  he  could  have  avoided  taking  life.  We  cannot  give 
our  assent  to  this  doctrine. 

The  application  of  the  doctrine  of  "  retreating  to  the  wall  "  was  care- 
fully examined  by  the  Supreme  Court  of  Ohio  in  Erwin  v.  State,  29 
Ohio  St.  186,  193,  199.     That  was  an  indictment  for  murder,  the  de- 

1  Only  so  much  of  the  opinion  as  discusses  the  question  of  self-defence  is  given. 

—  En. 


708  BEARD   V.   UNITED   STATES.  [CHAP.  V. 

fendant  being  found  guilty.  Ttie  trial  court  charged  the  jury  that  if 
the  defendant  was  in  the  lawful  pursuit  of  his  business  at  the  time  the 
fatal  shot  was  fired,  and  was  attacked  by  the  deceased  under  circum- 
stances denoting  an  intention  to  take  life  or  to  do  great  bodily  harm, 
he  could  lawfully  kill  his  assailant  provided  he  used  all  means  "  in  his 
power"  otherwise  to  save  his  own  life  or  prevent  the  intended  harm, 
"  such  as  retreating  as  far  as  he  can,  or  disabling  his  adversary,  with- 
out killing  him,  if  it  be  in  his  power;"  that  if  the  attack  was  so 
sudden,  fierce,  and  violent  that  a  retreat  would  not  diminish  but  in- 
crease the  defendant's  danger,  he  might  kill  his  adversary  without  re- 
treating ;  and  further,  that  if  from  the  character  of  the  attack  there 
was  reasonable  ground  for  defendant  to  believe,  and  he  did  honestlv 
believe,  that  his  life  was  about  to  be  taken,  or  he  was  to  suffer  great 
bodily  harm,  and  that  he  believed  honestly  that  he  would  be  in  equal 
danger  by  retreating,  then,  if  he  took  the  life  of  the  assailant,  he  was 
excused.     Of  this  charge  the  accused  complained. 

Upon  a  full  review  of  the  authorities  and  looking  to  the  principles 
of  the  common  law,  as  expounded  by  writers  and  courts  of  high 
authority,  the  Supreme  Court  of  Ohio  held  that  the  charge  was  errone- 
ous, saying  :  "  It  is  true  that  all  authorities  agree  that  the  taking  of  life 
in  defence  of  one's  person  cannot  be  either  justified  or  excused,  except 
on  the  ground  of  necessity ;  and  that  such  necessit}-  must  be  imminent 
at  the  time  ;  and  the}-  also  agree  that  no  man  can  avail  himself  of  such 
necessity  if  he  brings  it  upon  himself.  The  question  then  is  simply 
this  :  Does  the  law  hold  a  man  who  is  violently  and  feloniously  as- 
saulted responsible  for  having  brought  such  necessity  upon  himself  on 
the  sole  ground  that  he  failed  to  fly  from  his  assailant  when  he  might 
safeh'  have  done  so?  The  law,  out  of  tenderness  for  human  life  and 
the  frailties  of  human  nature,  will  not  permit  the  taking  of  it  to 
repel  a  mere  trespass,  or  even  to  save  life  where  the  assault  is 
provoked  ;  but  a  true  man  who  is  without  fault  is  not  obliged  to  fly 
from  an  assailant,  who  bv  violence  or  surprise  maliciously  seeks  to 
take  his  life  ^  or  to  do  him  enormous  bodily  harm.  Now,  under  the 
charge  below,  notwithstanding  the  defendant  may  have  been  without 
fault,  and  so  assaulted,  with  the  necessity  of  taking  life  to  save  his 
own  upon  him  ;  still  the  jury  could  not  have  acquitted  if  they  found  he 
had  failed  to  do  all  in  his  power  otherwise  to  save  his  own  life,  or  pre- 
vent the  intended  harm,  as  retreating  as  far  as  he  could,  etc.  In  this 
case  we  think  the  law  was  not  correctly  stated." 

In  Runyan  v.  State.  57  Indiana,  80,  84,  which  was  an  indictment  for 
murder,  and  where  the  instructions  of  the  trial  court  Involved  the 
present  question,  the  court  said  :  "  A  very  brief  examination  of  the 
American  authorities  makes  it  evident  that  the  ancient  doctrine,  as  to 
the  duty  of  a  person  assailed  to  retreat  as  far  as  he  can,  before  he  is 
justified  in  repelling  force  by  force,  has  been  greatly  modified  in  this 
country,  and  has  with  us  a  much  narrower  application  than  formerl}-. 
Indeed,  the  tendency  of  the  American  mind  seems  to  be  very  strongly 


SECT.  III.]  BEARD    V.    UNITED    STATES.  709 

against  the  enforcement  of  vaxy  rule  which  requires  a  person  to  flee 
when  assailed,  to  avoid  chastisement  or  even  to  save  human  life,  and 
that  tendency'  is  well  illustrated  by  the  recent  decisions  of  our  courts, 
bearing  on  the  general  subject  of  the  right  of  self-defence.  The  weight 
of  modern  authoritj',  in  our  judgment,  establishes  the  doctrine  that, 
when  a  person,  being  without  fault  and  in  a  place  where  he  has  a  right 
to  be,  is  violently  assaulted,  he  ma}',  without  retreating,  repel  force  by 
force,  and  if,  in  the  reasonable  exercise  of  his  right  of  self-defence,  his 
assailant  is  killed,  he  is  justifiable.  ...  It  seems  to  us  that  the  real 
question  in  the  case,  when  it  was  given  to  the  jur}',  was,  was  the 
defendant,  under  all  the  circumstances,  justified  in  the  use  of  a  deadly 
weapon  in  repelling  the  assaalt  of  the  deceased?  We  mean  by  this, 
did  the  defendant  have  reason  to  believe,  and  did  he  in  fact  believe, 
that  what  he  did  was  necessary  for  the  safet}'  of  his  own  life  or  to 
protect  him  from  great  bodily  harm?  On  that  question  the  law  is 
simple  and  easy  of  solution,  as  has  been  already  seen  from  the  authori- 
ties cited  above." 

In  East's  Pleas  of  the  Crown,  the  author,  considering  what  sort  of 
an  attack  it  was  lawful  and  justifiable  to  resist,  even  by  the  death 
of  the  assailant,  says :  "  A  man  may  repel  force  by  force  in  defence 
of  his  person,  habitation,  or  propert}',  against  one  who  manifestly 
intends  or  endeavors,  by  violence  or  surprise,  to  commit  a  known 
felony,  such  as  murder,  rape,  robbery,  arson,  burglary,  and  the  like, 
upon  either.  In  these  cases  he  is  not  obliged  to  retreat,  but  may 
pursue  his  adversary  until  he  has  secured  himself  from  all  danger;  and 
if  he  kill  him  in  so  doing,  it  is  called  justifiable  self-defence  ;  as,  on  the 
other  hand,  the  killing  by  such  felon  of  any  person  so  lawfully  defend- 
ing himself  will  be  murder.  But  a  bare  fear  of  any  of  these  offences, 
however  well  grounded,  as  that  another  lies  in  wait  to  take  away  the 
party's  life,  unaccompanied  with  any  overt  act  indicative  of  such  an 
intention,  will  not  warrant  in  killing  that  other  by  way  of  prevention.  , 

There  must  be  an  actual  danger  at  the  time."     p.  271.     So  in  Foster's  '  ^ /v**'***'.V^ 
Crown  Cases:    "In  the  case  of  justifiable  self-defence,   the  injured X;^ *-'V*V^fc[4*<; 
party  may  repel  force  with  force  in  defence  of  his  person,  habitation,  ot  ^^'^•^     r^ij/s 
property,  against  one  who  manifestly  intendeth  and  endeavoreth,  with 'w^'''Ti^J^jk;b^ /bft^ 
violence  or  surprise,  to  commit  a  known  felony  upon  either.     In  tho'ir^jL-  ^•^'^^^^ 

cases  he  is  not  obliged  to  retreat,  but  may  pursue  his  adversarj'  till  he  ^*4^  lun.^'^ 1 

findeth  himself  out  of  danger,  and  if,  in  a  conflict  between  them,  he; 
happeneth  to  kill,  such  killing  is  justifiable."     c.  3,  p.  273. 

In  Bishop's  New  Criminal  Law,  the  author,  after  observing  that  ^^^  ^*^Z^^i^ 
cases  of  mere  assault  and  of  mutual  quarrel,  where  the  attacking, 
party  has  not  the  purpose  of  murder  in  his  heart,  are  those  to  which 
is  applied  the  doctrine  of  the  books,  that  one  cannot  justify  the  killing 
of  another,  though  apparently  in  self-defence,  unless  he  retreat  to  the 
wall  or  other  interposing  obstacle  before  resorting  to  this  extreme  right, 
says  that  "  where  an  attack  is  made  with  murderous  intent,  the  person 
attacked  is  under  no  duty  to  fly ;  he  may  stand  his  ground,  and  if  need 


710  BEARD   V.    UNITED    STATES.  [CHAP.  V. 

be,  kill  his  adversary.  And  it  is  the  same  where  the  attack  is  with 
a  deadly  weapon,  for  in  this  case  the  person  attacked  ma}'  well  assume 
that  the  other  intends  murder,  whether  he  does  in  fact  or  not."  Vol.  1, 
§  850.  The  rule  is  thus  expressed  b}'  Wharton:  "A  man  may  repel 
force  b}'  force  in  the  defence  of  his  person,  habitation,  or  property, 
against  an}'  one  or  many  who  manifestly  intend  and  endeavor  by  vio- 
lence or  surprise  to  commit  a  known  felony  on  either.  In  such  case 
he  is  not  compelled  to  retreat,  but  may  pursue  his  adversary  until  he 
finds  himself  out  of  danger,  and  if  in  the  conflict  between  them  he 
happen  to  kill  him,  such  killing  is  justifiable."  2  Wharton  on  Crim. 
Law,  §  1019,  7th  rev.  ed.  Phila.  1874.  See  also  Gallagher  v.  State, 
3  Minnesota,  270,  273  ;  Pond  v.  People,  8  Michigan,  150,  177;  State  v. 
Dixon,  75  N.  C  275,  295;  State  v.  Sherman,  16  R.  I.  631 ;  Fields  v. 
State,  32  N.  E.  Rep.  780 ;  Eversole  v.  Commonwealth,  26  S.  W.  Rep. 
816  ;  Haynes  v.  State,  17  Georgia,  465,  483  ;  Long  v.  State,  52  Missis- 
sippi, 23,  35;  Tweedy  v.  State,  5  Iowa,  433  ;  iiaker  v.  Commonwealth, 
19  S.  W.  Rep.  975  ;  Tingle  v.  Commonwealth,  11  S.  W.  812  ;  3  Rice's 
Ev.  §  360. 

In  our  opinion  the  court  below  erred  in  holding  that  the  accused, 
while  on  his  premises,  outside  of  his  dwelling-house,  was  under  a  legal 
duty  to  get  out  of  the  way,  if  he  could,  of  his  assailant,  who,  according 
to  one  view  of  the  evidence,  had  threatened  to  kill  the  defendant,  in 
execution  of  that  purpose  had  armed  himself  with  a  deadly  weapon, 
with  that  weapon  concealed  upon  his  person  went  to  the  defendant's 
premises,  despite  the  warning  of  the  latter  to  keep  away,  and  by  word 
and  act  indicated  his  purpose  to  attack  the  accused.  The  defendant 
was  where  he  had  the  right  to  be,  when  the  deceased  advanced  upon  him 
in  a  threatening  manner,  and  with  a  deadly  weapon  ;  and  if  the  accused 
did  not  provoke  the  assault  and  had  at  the  time  reasonable  grounds  to 
believe,  and  in  good  faith  believed,  that  the  deceased  intended  to  take 
his  life  or  do  him  great  bodily  harm,  he  was  not  obliged  to  retreat,  nor 
to  consider  whether  he  could  safely  retreat,  but  was  entitled  to  stand 
his  ground  and  meet  any  attack  made  upon  him  with  a  deadly  weapon, 
in  such  way  and  with  such  force  as,  under  all  the  circumstances,  he,  at 
the  moment,  honestly  believed,  and  had  reasonable  grounds  to  beUeve, 
was  necessary  to  save  his  own  life  or  to  protect  himself  from  great 
bodily  injury. 

As  the  proceedings  below  were  not  conducted  in  accordance  with 
these  principles,  the  judgment  must  be  reversed  and  the  cause  re- 
manded with  directions  to  grant  a  new  trial. 

Other  objections  to  the  charge  of  the  court  are  raised  by  the  assign- 
ments of  error,  but  as  the  questions  which  they  present  may  not  arise 
upon  another  trial,  they  will  not  be  now  examined. 

Judgment  reversed} 

^  See  Allen  v.  U.  S.,  1 64  U.  S.  492.  In  that  case  Brown,  J.,  said :  "  Nor  is  there  any- 
thing in  the  instruction  of  the  court  that  the  prisoner  was  bound  to  retreat  as  far  as  he 


SECT.  III.]  ACERS   V.    UNITED    STATES.  711 

ACERS  V.  UNITED   STATES. 

Supreme  Court  of  the  United  States.     1896. 

[Reported  164  U.  S.  388.] 

Brewer,  J.  Plaintiff  in  error  was  convicted  in  the  District  Court  for 
the  Western  District  of  Arkansas  of  an  assault  with  intent  to  kill,  and 
sentenced  to  the  penitentiary  for  the  term  of  two  years  and  six  months. 
The  undisputed  facts  were  these :  Defendant  and  one  Joseph  M.  Owens 
had  some  dispute  about  business  affairs,  and  while  returning  together 
to  the  house  where  they  were  both  stopping,  defendant  picked  up  a 
stone  about  three  inches  wide,  nine  inches  long  and  an  inch  and  a  half 
or  two  inches  thick,  and  with  it  struck  Owens  on  the  side  of  the  head, 
fracturing  the  skull.  The  defence  was  that  there  was  no  intent  to  kill; 
that  defendant  acted  in  self-defence ;  that,  believing  Owens  was  about 
to  draw  a  pistol,  he  picked  up  the  stone  and  pushed  him  down  ;  and 
the  disputed  matters  were  whether  Owens  had  a  pistol,  and  if  so, 
whether  he  attempted  to  draw  it,  or  made  any  motions  suggestive  of 
such  a  purpose.  The  verdict  of  the  jury  was  averse  to  the  contentions 
of  the  defendant. 

The  onl}'  questions  presented  for  our  consideration  arise  on  the  charge 
of  the  court,  and  may  be  grouped  under  four  heads  :  First,  as  to  the 
evidences  of  intent ;  second,  as  to  what  constitutes  a  deadly  weapon ; 
third,  as  to  real  danger ;  and  fourth,  as  to  apparent  danger.  It  may 
be  premised  that  the  exceptions  to  this  charge  are  taken  in  the  careless 
way  which  prevails  in  the  "Western  District  of  Arkansas  ;  but  passing 
this  and  considering  the  charge  as  properly  excepted  to,  we  find  in  it  no 
substantial  error.^ 

Third.  With  reference  to  the  matter  of  self-defence  b}'  reason  of  the 
presence  of  a  real  danger,  the  court  charged  that  it  could  not  be  a  past 
danger,  or  a  danger  of  a  future  injury,  but  a  present  danger  and  a 
danger  of  "  great  injury  to  the  person  injured  that  would  maim  him,  or 
that  would  be  permanent  in  its  character,  or  that  might  produce  death." 
In  this  we  think  nothing  was  stated  incorrectl3',  and  that  there  was  a 
fair  definition  of  what  is  necessary  to  constitute  self-defence  by  reason 
of  the  existence  of  a  real  danger. 

could  before  slaying  his  assailant  that  conflicts  with  the  ruling  of  this  court  in  Beard  v. 
United  States,  158  U.  S.  5.50.  That  was  the  case  of  an  assault  upon  the  defendant 
upon  his  own  premises,  and  it  was  held  that  the  obligation  to  retreat  was  no  greater 
than  it  would  have  been  if  he  had  been  assailed  in  his  own  house.  So,  too,  in  the  case 
of  Alberty  v.  United  States,  162  U.  S.  499,  the  defendant  found  the  deceased  trj'ing  to 
obtain  access  to  his  wife's  chamber  through  a  window,  in  tlie  night-time,  and  it  was 
held  that  he  might  repel  the  attempt  by  force,  and  was  under  no  obligation  to  retreat 
if  the  deceased  attacked  him  with  a  knife.  The  general  duty  to  retreat  instead  of  kill- 
ing when  attacked  was  not  touched  upon  in  these  cases.  Whart.  on  Homicide,  §  485." 
—  Ed. 

1  The  discussion  of  the  first  two  questions  is  omitted.  —  Ed. 


712  ACERS    V.    UNITED    STATES.  [CHAP,  V. 

Neither,  fourthly,  do  we  find  anything  to  condemn  in  the  instructions 
in  reference  to  self-defence  based  on  an  apparent  danger.  Several 
approved  authorities  are  quoted  from  in  which  the  doctrine  is  correctl}' 
stated  that  it  is  not  sufficient  that  the  defendant  claims  that  he  believed 
he  was  in  danger,  but  that  it  is  essential  that  there  were  reasonable 
grounds  for  such  belief,  and  then  the  rule  was  summed  up  in  this  way  : 

"  Now  these  cases  are  along  the  same  line,  and  they  are  without 
limit,  going  to  show  that,  as  far  as  this  proposition  of  apparent  danger 
is  concerned,  to  rest  upon  a  foundation  upon  which  a  conclusion  that 
is  reasonable  can  be  erected  there  must  be  some  overt  act  being  done 
by  the  part}'  which  from  its  character,  from  its  nature,  would  give  a 
reasonable  man,  situated  as  was  the  defendant,  the  ground  to  believe  — 
reasonable  ground  to  believe  —  that  there  was  danger  to  his  life  or  of 
deadly  violence  to  his  person,  and  unless  that  condition  existed  then 
there  is  no  ground  upon  which  this  proposition  can  stand ;  there  is 
nothing  to  which  the  doctrine  of  apparent  danger  could  apply." 

Counsel  criticise  the  use  of  the  words  "  deadly  violence,"  as  though 
the  court  meant  thereby  to  limit  the  defence  to  such  cases  as  showed 
an  intention  on  the  part  of  the  person  assaulted  to  take  the  life  of  the 
defendant,  but  obviousl}'  that  is  not  a  fair  construction  of  the  language, 
not  only  because  danger  to  life  is  expressl}'  named,  but  also  because  in 
other  parts  of  the  charge  it  had  indicated  that  what  was  meant  by  those 
words  was  simply  great  violence.  This  is  obvious  from  this  language, 
found  a  little  preceding  the  quotation  :  "  '  When  from  the  nature  of  the 
attack.'  You  look  at  the  act  being  done,  and  you  from  that  draw  an 
inference  as  to  whether  there  was  reasonable  ground  to  believe  that 
there  was  a  design  upon  the  part  of  Owens  in  this  case  to  destroy  the 
life  of  the  defendant  Acers  or  to  commit  any  great  violence  upon  his 
person  at  the  time  he  was  struck  b}'  the  rock.  '  When  from  the  nature 
of  the  attack.'  That  implies  not  that  he  can  act  upon  a  state  of  case 
where  there  is  a  bare  conception  of  fear,  but  that  there  must  exist  that 
which  is  either  really  or  apparently  an  act  of  violence,  and  from  that  the 
inference  may  reasonably  be  drawn  that  there  was  deadly  danger  hang- 
ing over  Acers,  in  this  case,  at  that  time." 

These  are  all  the  matters  complained  of.  We  see  no  error  in  the 
rulings  of  the  court,  and,  therefore,  the  judgment  is  Affirmed. 


SECT.   III.]  STATE   V.  EVANS.  71 S 

STATE  V.  EVANS. 
Supreme  Court  of  Missouri. 

[Reported  124  Mo.  397.] 

Sherwood,  J.^  It  was  developed  by  the  evidence  that  Peter  Fine,  the 
deceased,  rented  a  farm  owned  by  defendant's  wife  ;  both  defendant 
and  deceased  and  their  families  living  on  the  farm  and  occupying 
portions  of  the  same  dwelling  house.  The  term  of  Fine  had  about 
expired,  and  he  had  been  informed  by  defendant  that  he  wanted  pos- 
session of  the  farm  on  the  expiration  of  the  year  for  which  it  was  rented 
to  him.  This  announcement  displeased  Fine  and  gave  rise  to  alterca- 
tions between  the  parties,  and  threats  on  the  part  of  Fine  towards 
defendant,  so  much  so,  that  several  da3-s  before  the  homicide  occurred, 
defendant  felt  it  to  be  necessary  to  take  steps  and  secure  the  arrest  of 
Fine  in  order  to  have  him  bound  over  to  keep  the  peace.  His  arrest 
greatly  enraged  Fine,  and  he  made  threats  of  taking  defendant's  life 
unless  he  got  off  the  place,  etc.  ;  these  threats,  some  of  them,  extend- 
ing even  down  to  the  morning  of  the  day  on  which  Fine  was  shot,  the 
twenty-fifth  of  October.  On  the  morning  of  that  dajs  having  been 
freshly  threatened,  defendant  for  his  own  protection  deemed  it  neces- 
sary to  procure  a  pistol,  which  he  did  by  riding  to  Boonville  for  that 
purpose,  and  having  loaded  the  weapon,  returned  home  with  it  in  his 
pocket,  reaching  there  about  noon.  After  putting  his  horse  up  in  the 
stable,  he  went  to  his  house,  and  after  some  talk  with  his  wife  about 
domestic  affairs,  went  down  for  some  corn  into  the  cornfield  where  the 
tragedy  which  forms  the  subject  of  the  present  prosecution,  occurred. 

Speaking  of  the  instructions  generall}',  and  taking  them  as  a  whole, 
they  are  such  as  have  frequently  received  the  approval  of  this  court. 
Express  objection  has,  however,  been  taken  to  the  eighth  instruction 
couched  in  this  language  : 

"  If  you  find  from  the  evidence  that  the  defendant  armed  himself 
with  a  deadly  weapon  and  went  to  where  the  deceased  was,  expect- 
ing the  deceased  to  assault  him,  and  with  the  intent  of  inflicting 
death  or  great  personal  injury  upon  the  deceased,  then  he  can  not  be 
justified  upon  the  ground  of  self-defence,  even  though  you  should  find 
that  the  deceased  was  about  to  kill  him  or  inflict  upon  him  some  great 
personal  injury.  But  the  fact  that  he  went  to  the  field  where  the  de- 
ceased was  would  not  deprive  him  of  the  right  of  self-defence  if  he  went 
with  some  other  purpose  and  not  with  the  expectation  that  a  .difficulty 
would  arise,  and  with  the  intent  of  inflicting  death  or  a  great  personal 
injury  upon  the  deceased." 

The  fact  that  defendant  expected  an  attack  did  not  abate  by  one  jot 

^  Only  so  much  of  the  opinion  as  discusses  the  question  of  self-defence  is  given.  — 
Ed. 


714  CREIGHTON    V.    COMMONWEALTH.  [CHAP.  V. 

or  tittle  his  right  to  arm  himself  in  his  own  proper  defence,  nor  to  go 
where  he  would,  after  thus  arming  himself,  so  long  as  he  did  no  overt 
act  or  made  no  hostile  demonstrations  toward  Fine.  Defendant  was 
where  he  had  a  right  to  be,  the  land  belonged  to  his  wife;  he  had  a 
right  to  see  that  proper  division  was  made  of  the  crop,  and  to  oversee 
such  division.     State  v.  Forsythe,  89  Mo.  667. 

If  the  mere  expectation  of  an  assault  from  an  adversary  is  to  deprive 
the  expectant  of  the  right  of  self-defence,  merely  because  he  goes  armed 
in  the  vicinity  of  his  enemy,  or  goes  out  prepared  upon  the  highway 
where  he  is  likely  at  any  moment  to  meet  him,  then  he  has  armed  him- 
self in  vain,  and  self-defence  ceases  wherever  expectation  begins. 

We  do  not  so  understand  the  law.  The  very  object  of  arming  one- 
self is  not  to  destroy  expectation  of  a  threatened  attack,  but  to  be 
prepared  for  it  should  it  unfortunately  come.  Our  legislature  has 
sanctioned  this  view  b}'  making  the  carrying  of  concealed  weapons 
non-punishable,  when  the  accused  has  been  threatend  with  great  bodily 
harm,  etc.  R.  S.  1889,  sec.  3503.  The  instruction  must,  therefore,  be 
ruled  erroneous. 


A 


CREIGHTON  v.  COMMONWEALTH. 
Court  of  Appeals  of  Kentucky.      1886. 

[Reported  84  Kentucky,  103.] 

pRTOR,  J.^  The  case  under  consideration  has  been  heretofore  in  this 
court,  and  the  judgment  of  conviction  reversed. 

The  appellant  was  indicted,  tried,  and  convicted  of  manslaughter  for 
the  killing  of  Ambrose  Wilson. 
,          It  is  claimed  by  the  accused  that  Wilson  attempted  to  arrest  him  for 
a  misdemeanor  when  he  was  not  a  peace  officer,  and  had  no  authority 
"S  to  take  charge  of  his  person  or  make  the  arrest,  and  that  in  the  un- 

lawful conduct  of  Wilson  originated  the  altercation  resulting  in  his 
death.  This  court  held  in  the  former  opinion  (83  Ky.  142)  that  the 
deceased  was  not  a  peace  officer,  and  in  attempting  to  make  the  arrest 
was  guilt}'  of  a  trespass,  and  that  this  fact  should  not  have  been  ex- 
cluded from  the  consideration  of  the  jury. 

In  resisting  the  arrest  —  and  this  the  accused  had  the  right  to  do  — 
he  could  not  take  the  life  of  Wilson  unless  his  own  life  was  in  danger, 
or  to  save  his  person  from  great  bodily  injury.  If  either  fact  existed, 
or  if  he  had  reasonable  grounds  to  believe,  and  did  believe,  that  he  was 
in  imminent  peril  of  losing  his  life,  then,  for  his  own  protection,  he  had 
the  right  to  take  the  life  of  the  deceased. 

The  right  of  protection  against  all  forcible  attacks  upon  the  person 

1  Part  of  the  opinion  only  is  given. 


SECT.   III.]  CREIGHTON   V.    COMMONWEALTH.  715 

belongs  to  every  man ;  but  the  extent  to  which  this  may  go,  or  the 
manner  of  defence,  is  an  important  inquiry.  Human  life  cannot  be 
talien  unless  to  protect  the  life  of  another,  or  prevent  the  infliction  of 
some  great  bodily  injury,  and  the  degree  of  force  to  be  used  must  be 
determined  by  the  character  of  the  attack  made.  '-Although  a  man 
will  not  be  justified,  then,  if  he  kill  in  defence  against  an  illegal  arrest 
of  an  ordinary  character,  yet  the  law  sets  such  a  high  value  upon  the 
liberty  of  the  citizen  that  an  attempt  to  arrest  him  unlawfully  is 
esteemed  a  great  provocation,  such  as  will  reduce  a  killing  in  the 
resistance  of  such  an  arrest  to  manslaughter."  Commonwealth  v. 
Carey,  12  Cush.  246  ;  Roberts  v.  State,  14  Mo.  138  ;  1  Hale's  Pleas 
of  the  Crown,  457  ;  note  to  Horrigan  &  Thompson's  Cases  on  Self- 
Defence,  p.  816. 

Bishop  says:  "The  attempt  to  take  away  one's  liberty  is  not  such 
an  aggression  as  may  be  resisted  to  the  death.  Nothing  short  of  an 
endeavor  to  destroy  Ufe  will  justify  the  taking  of  life,  is  a  doctrine  that 
prevails  in  such  a  case."     1  Bishop's  Crim.  Law,  §  868. 

At  first  impression  it  would  seem  that  in  the  attempt  to  deprive  one 
wrongfully  of  his  personal  liberty,  the  party  assaulted  should  be  per- 
mitted to  use  all  the  force  necessary  to  release  himself  from  the  unlawful 
arrest,  or  to  prevent  the  imprisonment ;  fo7-  life  being  valueless  without 
liberty^  the  modes  of  defence  for  the  preservation  of  human  life  should 
be  allowed  for  the  maintenance  of  human  liberty. 

Mr.  Bishop  says:  "The  reason  why  a  man  may  not  oppose  an 
attempt  on  his  liberty  by  the  same  extreme  measures  permissible  in  an 
attempt  on  his  life,  may  be  because  libert}'  can  be  secured  by  a  resort 
to  the  laws."     1  Bishop's  Crim.  Law,  §  868. 

There  are  cases  in  which  the  party  subjected  to  the  unlawful  arrest 
may  resist,  even  to  taking  the  life  of  the  wrong-doer.  Where  the 
attempt,  says  Mr.  Bishop,  is  to  convey  one  by  force  beyond  the  reach 
of  law,  or  to  carry  him  out  of  the  country,  in  such  extreme  cases  the 
party  would  be  justified  in  resisting  to  the  death  of  his  adversary. 

In  the  present  case  the  court  below  told  the  jury  "  that  the  arrest  of 
the  accused  was  unlawful,  and  that  the  latter  had  the  right  to  resist 
the  arrest  by  the  use  of  such  force,  but  only  such  force,  as  was  neces- 
sary, or  seemed  to  him  (the  defendant),  in  the  exercise  of  a  reasonable 
judgment,  to  be  necessary  to  repel  the  force  used  by  Wilson  in  attempt- 
ing to  arrest  him ;  and  if  the  jury  believe  from  the  evidence  that  the 
defendant,  at  the  time  he  shot  and  killed  Wilson,  believed,  and  had 
reasonable  grounds  to  believe,  that  he  was  then  and  there  in  immediate 
danger  of  losing  his  own  life,  or  of  great  bodily  harm  at  the  hands  of 
said  Wilson,  and  that  to  shoot  said  Wilson  was  necessary,  or  seemed 
to  the  defendant,  in  the  exercise  of  a  reasonable  judgment,  to  be  neces- 
sary, to  avert  the  danger,  real  or  to  him  apparent,  as  before  stated,  the 
jury  should  find  him  not  guilty." 

Learned  counsel  for  the  defence,  in  response  to  the  argument  by  the 
attorney  for  the  State,  insisted  that  his  client  had  the  right  to  use  such 


716  STATE  V.   SHERMAN.  [CHAP.  V, 

force,  and  no  more,  as  was  necessary  to  resist  the  arrest  and  prevent 
an  unlawful  imprisonment,  and  that  the  danger  to  life  or  the  fear  of 
great  bodil}'  harm  should  have  been  eliminated  from  the  instruction. 
However  persuasive  his  argument,  and  conceding  that  any  other  arrest 
and  imprisonment  than  that  which  is  in  accordance  with  law  and  neces- 
sary' for  the  ends  of  public  justice  is  inconsistent  with  civil  liberty, 
still  the  enjoyment  of  the  absolute  right  of  personal  lil^erty  cannot  be 
asserted  by  taking  the  lives  of  those  restraining  its  exercise,  unless  the 
attempt  to  prevent  its  enjoyment  endangers  the  life  of  the  citizen,  or 
sulyccts  him  to  great  bodily  harm. 

The  law  has  merely  said  to  the  citizen  that,  although  your  liberty 
has  been  restrained,  you  cannot  deprive  the  aggressor  of  his  life  in 
order  to  regain  it,  unless  3'ou  are  in  danger  of  losing  your  own  life. 

Such  was  the  instruction  given  by  the  court  below,  and  the  accused 
having  been  found  guilty  of  manslaughter  only,  we  perceive  no  reason 
for  disturbing  the  judgment,  and  the  same  is  now  affirmed. 


STATE  V.   SHERMAN. 
Supreme  Court  of  Rhode  Island.     1889. 

[Reported  16  Rhode  Island,  631.] 

DuRFEE,  C.  J.^  On  trial  in  the  Court  of  Common  Pleas  the  com- 
plainant testified  that,  seeing  the  defendants  tearing  down  the  cause- 
way, he  ran  to  where  said  John  P.  Sherman  was  at  work,  and  put  his 
foot  on  a  stone  which  said  John  P.  was  prying  up  with  a  crowbar ; 
that  said  John  P.  raised  the  crowbar  as  if  to  strike  him,  whereupon  he 
seized  it  in  self-defence,  and  some  one,  he  knew  not  who,  knocked 
him  down,  and  that  said  John  P.  twice  threw  him  from  the  causewav 
into  the  water.  His  testimony  was  corroborated  b}'  other  witnesses. 
On  the  other  hand,  said  John  P.  testified  that  the  complainant  rushed 
down  and  seized  him,  that  he  never  either  struck  or  struck  at  him,  but 
only  pushed  him  awa}*,  using  no  more  force  than  was  necessary  for 
self-protection,  as  the  complainant  repeatedh'  attacked  him.  Other 
witnesses  corroborated  him.  He  also  testified  that  the  open  water  at 
the  end  of  the  causeAvay  was  too  shallow  for  him  to  pass  without  get- 
ting out  of  his  boat  and  dragging  it.  After  the  case  had  been  argued 
to  the  jur}',  he  asked  the  court  to  instruct  the  jur}'  as  follows,  to  wit : 
"  That  a  man  in  a  public  place,  if  attacked,  ma}-  resist  with  his  natural 
weapons,  using  no  more  force  than  is  necessarj',  without  retreating." 
The  court  refused,  but  did  instruct  them  that  in  such  a  case  a  man  must 
retreat,  if  he  can  safely,  and  that  the  defendant  did  not  testify  that 
there  was  anything  to  prevent  his  retreating.     The  defendant  excepted 

i  Part  of  the  opinion  only  is  given. 


SECT.  III.]  STATE    V.    SHERMAN.  717 

to  both  the  refusal  and  the  instruction.  The  bill  of  exceptions  sets 
forth  that  the  complainant's  counsel  stated,  in  his  argument  to  the 
jurj-,  that  he  did  not  claim  for  the  complainant  the  right  to  use  an}* 
force  to  protect  the  causeway,  or  an}'  force  against  the  defendant,  ex- 
cept such  as  he  might  lawfully  use  in  any  public  place. 

We  think  the  court  below  erred.  Generally  a  person  wrongfully 
assailed  cannot  justify  the  killing  of  his  assailant  in  mere  self-defence, 
if  he  can  safely  avoid  it  by  retreating.  Retreat  is  not  always  obliga- 
tory, even  to  avoid  killing  ;  for  if  attack  be  made  with  deadly  weapons, 
or  with  murderous  or  felonious  intent,  the  assailed  may  stand  his 
ground,  and  if  need  be  kill  his  assailant.  But  there  is  no  question  of 
killing  here,  and  we  know  of  no  case  which  holds  that  retreat  is  obli- 
gatory simply  to  avoid  a  conflict.  Where  there  is  no  homicide  the 
rule  generally  laid  down  is,  that  the  assaulted  person  may  defend  him- 
self, opposing  force  to  force,  using  so  much  force  as  is  necessary  for 
his  protection,  and  can  be  held  to  answer  only  for  exceeding  such 
degree.  Mr.  Bishop,  in  his  work  on  Criminal  Law,  §  849,  says: 
"  The  assailed  person  is  not  permitted  to  stand  and  kill  his  adversary, 
if  there  is  a  way  of  escape  open  to  him,  while  yet  he  may  repel  force 
by  force,  and,  within  limits  differing  with  the  facts  of  the  case,  give 
back  blow  for  blow."  See,  also,  1  Wharton's  Criminal  Law,  §  99 ; 
Stephen's  Digest  Criminal  Law,  art.  200  ;  May's  Criminal  Law,  Stu- 
dents' Series,  §  62.  Mr.  May's  language  is:  "There  seems  to  be  no 
necessity  for  retreating  or  endeavoring  to  escape  from  the  assailant 
before  resorting  to  any  means  of  self-defence  short  of  those  which 
threaten  the  assailant's  life."  In  Commonwealth  v.  Drum,  58  Pa. 
1,  21,  22,  where  the  defendant,  who  was  indicted  for  murder,  set  up 
that  he  acted  in  self-defence,  the  court  in  charging  tlie  jury  used  the 
following  language :  "  The  right  to  stand  in  self-defence  without  flee- 
ing has  been  strongly  asserted  by  the  defence.  It  is  certainly  true 
that  every  citizen  may  rightfully  traverse  the  street,  or  may  stand  in 
all  proper  places,  and  need  not  flee  from  every  one  who  chooses  to 
assail  him.  Without  this  our  liberties  would  be  worthless.  But  the 
law  does  not  apply  this  right  to  homicide."  There  are  cases,  however, 
which  manifest  a  disposition  to  apply  the  same  rule  generally.  Run- 
yan  v.  The  State,  57  Ind.  80  :  Erwin  v.  State,  29  Ohio  St.  186. 

In  Gallagher  v.  The  State,  3  Minn.  270,  the  defendant  was  com- 
plained of  for  assault  and  battery,  and  set  up  in  justification  that  he 
acted  in  self-defence,  the  comi)lainant  having  stepped  forward  with 
his  cane  raised,  as  if  about  to  strike.  The  lower  court,  on  trial,  ruled 
as  follows  :  "Where  a  person  is  approached  by  another  with  a  cane 
raised  in  a  hostile  manner,  the  former  is  not  justified  in  striking  un- 
necessarily, but  is  bound  to  retreat  reasonatily  before  striking."  On 
error  the  Supreme  Court  held  the  ruling  to  be  erroneous.  "  Such  is 
not  the  law,"  say  the  court ;  "  but  the  party  thus  assaulted  may  strike, 
or  use  a  sufficient  degree  of  force  to  prevent  the  intended  blow,  with- 
out retreating  at  all."  The  case  is  exactly  in  point.  The  exception 
is  therefore  snstnined,  and  the  cause  will  be  remitted  for  a  new  trial. 


718  UHLEIN   V.   CROMACK.  [CHAP.  V. 


UHLEIN  V.   CROMACK. 
Supreme  Judicial  Court  of  Massachusetts,  1872. 

[Reported  109  Mass.  273.] 

Tort  for  killing  the  plaintiflF's  dog.^ 

The  defendant  contended  that  he  had  a  right  to  kill  the  dog,  on 
the  ground  that  it  was  a  public  nuisance,  because  it  was  a  dangerous 
animal  and  accustomed  to  bite  those  who  came  near  it;  and  that  the 
plaintiff  did  not  properly  confine  it;  and  e\ndence  was  offered  on  this 
point,  and  that  the  dog  had  pre^^ously  bitten  two  persons,  one  of  whom, 
while  going  upon  the  plaintiff's  premises,  over  a  fence  in  the  rear  of  the 
kennel,  to  do  some  work  for  the  plaintiff's  family,  came  past  the  dog, 
and  the  other  of  whom  was  attacked  some  months  before,  on  the  public 
highway.  The  defendant  also  introduced  evidence  tending  to  show 
that  the  locality  in  which  the  plaintiff  lived  was  quiet,  and  compara- 
tively free  from  persons  likely  to  trespass  on  the  plaintiff's  premises. 
The  judge  rules  that  these  facts  alone,  if  true,  would  not  justify  the 
defendant  in  killing  the  dog  as  he  did,  the  statute  specifying  the  method 
by  which  a  dangerous  dog  might  be  killed,  and  the  defendant  not 
claiming  to  have  acted  under  any  authority  conferred  on  him  by  the 
statute;  and  so  instructed  the  jury,  to  which  the  defendant  excepted. 
The  jury,  however,  when  they  returned  their  verdict,  at  the  request  of 
the  judge  returned  special  findings,  that  the  dog  was  a  dangerous  ani- 
mal and  accustomed  to  bite  those  who  came  near  it,  but  that  it  was 
chained  and  confined  so  that  all  persons  properly  on  the  plaintiff's 
premises  were  in  no  danger  from  it. 

Chapman,  C.  J.  By  the  common  law,  a  dog  is  property,  for  an 
injury  to  which  an  action  will  lie.  Wright  v.  Ramscot,  1  Saund.  84; 
2  Bl.  Com.,  393.  In  this  commonwealth  the  keeping  of  dogs  is  regu- 
lated by  the  Gen.  Sts.  c.  88,  §§  52  et  scq.,  and  the  St.  of  1867,  c.  130. 
The  plaintiff  kept  his  dog  restrained  in  conformity  with  the  statutes. 
Although  the  dog  was  a  dangerous  animal,  and  accustomed  to  bite  those 
who  came  near  it,  yet,  as  it  was  confined,  so  that  all  persons  properly 
on  the  plaintiff's  premises  were  in  no  danger  from  it,  and  was  otherwise 
kept  according  to  law,  and  the  defendant  had  not  been  attacked  by  it, 
the  jury  were  properly  instructed  that  the  act  of  the  defendant  was  not 
justifiable.  They  were  also  properly  instructed  that  the  plaintiff  had 
a  right  thus  to  keep  it  for  the  protection  of  his  family .^ 

Exceptions  overruled. 

1  Part  of  the  statement  of  facts  is  omitted.  —  Ed. 

2  See  McChesney  v.  Wilson,  132  Mich.  252.  —  Ed. 


SECT.  III.]  BARFOOT    V.    REYNOLDS.  719 


BARFOOT  V.  REYNOLDS. 
King's  Bench. 

[Reported  2  Sir.  953.] 

Trespass,  assault,  and  battery  against  Reynolds  and  Westwood. 
Reynolds  pleaded  smi  assmiU:  and  Westwood  pleaded  that  he  was 
servant  to  Reynolds,  the  other  defendant,  and  that  the  plaintiff  having 
assaulted  his  master  in  his  presence,  he  in  defense  of  his  master  struck 
the  plaintiff.  And  on  demurrer  the  plea  was  held  ill,  for  the  assault 
on  the  master  might  be  over,  and  the  servant  cannot  strike  by  way  of 
revenge,  but  in  order  to  prevent  an  injury;  and  the  right  way  of 
pleading  is,  that  the  plaintiff  would  have  beat  the  master,  if  the  ser- 
vant had  not  interposed,  prout  ei  bene  licuit.  The  plaintiff  had  judg- 
ment. 


1  East  P.  C.  289,  290.  In  all  cases  where  a  felonious  attack  is 
made,  a  servant  or  any  other  person  present  maj-  lawfully  interpose  to 
prevent  the  mischief  intended  ;  and  if  death  ensue,  the  party  so  inter- 
posing will  be  justified.  Thus,  in  the  instances  of  arson  or  burglarj-, 
a  lodger  may  lawfully  kill  the  assailant  in  the  same  manner  as  the 
owner  himself  might  do.  .  .  .  But  the  case  of  third  persons  interfer- 
ing in  mutual  combats  or  sudden  affrays,  except  as  mediators  to  pre- 
serve the  peace,  requires  greater  caution.  ...  If  A.,  a  stranger,  take 
part  on  a  sudden  with  either  B.  or  C.  who  are  engaged  together  in  an 
affray,  wherein  both  are  in  the  eye  of  the  law  blamable,  although 
perhaps  in  different  degrees  ;  and  afterwards  kill  either,  although  in 
the  necessar}"  defence  of  the  other,  it  cannot  be  less  than  manslaughter  ; 
for  he  who  thus  officiousl}'  interferes  without  an}-  previous  knowledge 
of  the  merits  of  the  dispute,  not  to  preserve  the  peace  but  to  partake 
in  the  broil,  is  himself  higlily  culpable,  —  having  less  provocation  to 
heat  his  blood  than  probably  the  parties  themselves  had  who  originally 
engaged  in  the  dispute.^ 


^  For  the  analogous  case  of  a  stranger  interfering  to  rescue  one  who  having  been 
illegally  arrested  had  nevertheless  submitted,  see  Rex  v.  Tooley,  2  Ld.  Ray.  1296; 
Hugget's  Case,  Kel.  59;  Adey's  Case,  1  Leach,  245;  Steph.  Dig.  Cr.  L.  372.  —  Ed. 


720  REGINA   V.   ROSE.  [CHAP.  V. 


REGINA   y.   ROSE. 
Oxford  Assizes.     1884. 

[Reported  15  Cox  C.  C.  540] 

The  prisoner  was  indicted  for  the  wilful  murder  of  his  father,  John 
William  Rose,  at  Witney,  on  the  27th  day  of  September. 

The  material  facts  proved  were  as  follows :  The  prisoner,  a  weakly 
young  man  of  about  twenty-two  years  of  age,  was  at  the  time  of  the 
alleged  murder  living  with  his  father,  mother,  and  sisters  at  Witney. 
The  father,  who  was  a  very  powerful  man,  had  recently  taken  to  exces- 
sive drinking,  and  while  in  a  state  of  intoxication  was  possessed  with 
the  idea  that  his  wife  was  unfaithful  to  him.  He  had  on  more  than  one 
occasion  threatened  to  take  away  her  life,  and  so  firmly  impressed  was 
she  with  the  idea  that  these  were  no  idle  threats  that  the  prisoner's 
mother  had  frequently  concealed  everything  in  the  house  which  could 
be  used  as  a  weapon. 

On  the  night  in  question  the  familv  retired  to  their  bedrooms,  which 
were  situated  adjoining  to  one  another,  about  nine  o'clock.  The 
deceased  man  appears  to  have  immediately  commenced  abusing  and 
illtreating  his  wife,  accusing  her  of  unfaithfulness  to  him  and  threaten- 
ing to  murder  her.  On  several  occasions  she  retired  for  safety  to  her 
daughter's  room  ;  on  the  last  occasion  her  husband  pursued  her,  and 
seizing  her  dragged  her  towards  the  top  of  the  stairs,  threatening  to 
push  her  down.  He  then  said  he  would  cut  her  throat,  left  her  saying 
he  was  going  to  fetch  the  knife  which  all  the  family  seem  to  have 
known  was  in  his  room,  and  then  rushing  back  seized  his  wife,  and 
forced  her  up  against  the  balusters,  holding  her  in  such  a  position  that 
the  daughters  seem  to  have  thought  he  was  actualh'  cutting  her  throat. 
The  daughters  and  mother  shouted  "  Murder  !  "  and  the  prisoner,  run- 
ning out  of  his  room,  found  his  father  and  mother  in  the  position 
described.  No  evidence  was  given  that  the  deceased  man  had  any 
knife  in  his  hand,  and  all  the  witnesses  said  that  they  did  not  see  then 
or  afterwards  find  his  knife. 

The  prisoner  fired  one  shot  (according  to  his  own  account)  to  frighten 
his  father,  but  no  trace  of  an}'  bullet  could  be  found,  and  immediately 
after  he  fired  another  shot  which,  striking  his  father  in  the  eye,  lodged 
in  the  brain  and  caused  his  death  in  about  twelve  hours.  On  his  arrest 
the  prisoner  said,  "  Father  was  murdering  Motiier.  I  shot  on  one  side 
to  frighten  him  ;  he  would  not  leave  her,  so  I  shot  him." 

In  cross-examination  the  deceased  man's  emploj'er  said  that  the  pris- 
oner's father  was  the  strongest  man  he  had  ever  seen,  and  the  prisoner 
would  not  have  had  the  slightest  chance  in  a  hand-to-hand  encounter 
with  him. 


SECT.  III.]  FLINT   V.   BRUCE.  721 

The  defence  set  up  was  that  the  case  was  one  of  excusable  homicide. 

His  Lordship  [Lopes,  J.]  in  the  course  of  his  summing  up  said  : 
Homicide  is  excusable  if  a  person  takes  away  the  life  of  another  in 
defending  himself,  if  the  fatal  blow  which  takes  away  life  is  necessary 
for  his  preservation.  The  law  says  not  only  in  self-defence  such  as  I 
have  described  may  homicide  be  excusable,  but  also  it  may  be  excusable 
if  the  fatal  blow  inflicted  was  necessary  for  the  preservation  of  life.  In 
the  case  of  parent  and  child,  if  the  parent  has  reason  to  believe  that  the 
life  of  a  child  is  in  imminent  danger  by  reason  of  an  assault  b}'  another 
person  and  that  the  only  possible,  fair,  and  reasonable  means  of  saving 
the  child's  life  is  by  doing  something  which  will  cause  the  death  of  that 
person,  the  law  excuses  that  act.  It  is  the  same  of  a  child  with  regard 
to  a  parent ;  it  is  the  same  in  the  case  of  husband  and  wife.  Therefore 
I  propose  to  lay  the  law  before  j'ou  in  this  form :  If  you  think,  having 
regard  to  the  evidence  and  drawing  fair  and  proper  inferences  from  it, 
that  the  prisoner  at  the  bar  acted  without  vindictive  feeling  towards  his 
father  when  he  fired  the  shot,  if  you  think  that  at  the  time  he  fired  that 
shot  he  honestl}'  believed  and  had  reasonable  grounds  for  the  belief  that 
his  mother's  life  was  in  imminent  peril,  and  that  the  fatal  shot  which 
he  fired  was  absolutely  necessary  for  the  preservation  of  her  life,  then 
he  ought  to  be  excused,  and  the  law  will  excuse  him  from  the  conse- 
quences of  the  homicide.  If,  however,  on  the  other  hand,  you  cannot 
come  to  that  conclusion,  if  you  think,  and  think  without  any  reasonable 
doubt,  that  it  is  not  a  fair  inference  to  be  drawn  from  the  evidence,  but 
are  clearly  of  opinion  that  he  acted  vindictively  and  had  not  such  a 
belief  as  I  have  described  to  3'ou,  or  had  not  reasonable  grounds  for 
such  a  belief,  then  you  must  find  him  guilty  of  murder. 

Verdict,  I^ot  guilty} 


FLINT  V.   BRUCE. 
Supreme  Judicial  Court  of  Maine,  1878. 

[Reported  68  Me.  183.] 

Appleton,  C.  J.^  This  is  an  action  of  trespass  for  an  assault  and 
battery  upon  the  plaintiff  by  the  defendant. 

The  e\adence  shows  an  affray  between  the  defendant  and  A.  L. 
Soule,  the  father  of  the  plaintiff.  The  plaintiff  interfered  for  the  pro- 
tection of  her  father,  and  to  prevent  the  further  continuance  of  the 
affray.    A  child  has  an  unquestioned  right  to  intervene  for  the  protec- 

1  See  Campbell  t.  Com.,  88  Ky.  402.     As  to  right  of  a  U.  S.  marshal  to  defend  a 
judge,  see  In  re  Neagle,  135  U.  S.  1.  —  Ed. 
*  Part  of  the  opinion  only  is  printed.  —  Ed. 


722  TOMPKINS    V.    KNUT.  [CHAP.  Y. 

tion  of  a  father  upon  whom  an  assault  is  being  committed.  The 
defendant  committed  the  assault  upon  the  plaintiff  while  acting  in  de- 
fense of  her  father.  For  this  assault  and  the  damages  resulting  there- 
from the  defendant  is  responsible  to  this  plaintiff.  .  .  . 


TOMPKINS  V.  KNUT. 
Circuit  Court  of  the  United  States,  1899. 

[Reported  94  Fed.  956.] 

Evans,  J.  In  the  case  of  Oscanyan  v.  Arms  Co.,  103  U.  S.  261,  the 
trial  court,  after  hearing  the  opening  statement  by  plaintiff's  counsel 
to  the  jury  as  to  what  facts  were  expected  to  be  proved  to  support  the 
plaintiff's  case,  and  after  verifying  the  accuracy  of  the  statement,  sus- 
tained a  motion  on  behalf  of  defendant  on  that  presentation  of  the 
case  alone  to  instruct  the  jury  to  find  a  verdict  against  the  plaintiff 
upon  the  ground  that,  if  those  statements  were  true,  the  contract  sued 
upon  was  against  public  policy,  and  void.  Upon  a  writ  of  error  to  the 
Supreme  Court  the  proceeding  was  approved,  and  the  judgment  was 
affirmed.  The  plaintiff  in  this  action  for  assault  and  battery  and  tres- 
pass has  testified  under  oath,  and  stated  the  facts  upon  which  he  relies 
in  support  of  his  action,  and  the  court  is  called  upon  to  determine 
whether,  assuming  all  the  plaintiff  says  to  be  true,  he  is  entitled  to 
a  verdict  against  the  only  defendant  now  remaining  in  the  case,  since  the 
death  of  his  wife,  the  former  co-defendant,  has  abated  the  action  as  to 
her.  As  the  plaintiff  was  a  participant  in  the  entire  transaction  out  of 
which  his  action  arose,  and  completely  states  his  case,  it  is  admissible 
and  proper,  I  think,  to  bring  this  question  up  now,  because  it  would 
not  be  competent  for  him  by  other  witnesses  to  contradict  what  he 
says;  and  while,  on  this  motion,  his  statements  must  be  accepted  as 
true  in  his  behalf,  they  may  also,  for  the  reason  indicated,  be  taken  as 
true  against  him.  It  appears  from  his  testimony  that,  haAnng  been 
employed  by  the  defendant  and  his  wife  and  her  brother,  the  owners 
of  the  farms  described  in  the  pleadings,  up  to  January  1,  1898,  as  a 
manager  and  overseer,  his  contract  was  soon  afterwards  renewed  for  the 
year  1898;  that  part  of  the  agreement  was  that  the  plaintiff,  besides 
his  monthly  wages,  was  to  have  the  use  of  the  house  on  the  premises  for 
occupation  by  himself  and  family,  and  also  pro\'isions  for  the  support 
of  them  all;  that  on  the  24th  of  January,  1898  (the  defendant  and  wife 
having  come  to  the  farm  on  in\'itation  of  the  plaintiff  in  the  preceding 
December,  and  having  remained  there,  and  all  parties  having  been 


SECT.  III.]  TOMPKINS  V.   KNUT.  723 

entirely  friendly,  up  to  January  24th),  there  was  some  dispute  as  to 
whether  plaintiff  was  any  longer  wanted,  or  would  be  permitted  to 
remain,  as  the  employee  of  defendant  and  his  wife;  that  on  the  succeed- 
ing day  (January  25th),  while  the  defendant  was  outside  the  house  to 
the  plaintiff's  knowledge,  who  was  also  outside,  the  plaintiff  was  hastily 
informed  that  Mrs.  Knut,  or  someone  in  the  inside  of  the  house,  was 
removing  the  furniture,  and  putting  liis  family  out,  whereupon  the 
plaintiff  hurriedly  ran  into  the  house,  seized  a  Winchester  repeating 
rifle,  and,  upon  going  into  the  room  where  the  others  were,  among  other 
things,  said,  "  If  they  touch  any  more  of  my  furniture  I  will  kill  every 
son  of  bitch  who  does  it";  that  the  rifle  was  then  cocked,  and  leveled, 
in  the  hands  of  the  plaintiff,  who  also  had  upon  him  a  revolver,  and 
probably  a  dirk;  that  Mrs.  Knut,  while  appealing  to  him  to  desist, 
took  hold  of  the  rifle,  and  while  she  had  hold  of  it  it  was  discharged; 
that  the  defendant  also  went  into  the  room  soon  after  plaintiff  did,  and 
there  found  his  wife  struggling  with  plaintift",  who  was  armed  as  indi- 
cated, and  endeavoring  in  some  way  to  control  the  direction  of  the 
pointing  of  the  gun;  that  under  these  circumstances  the  defendant, 
with  some  persons  present  (none  of  whom  except  the  plaintiff  appear 
in  any  way  to  have  been  armed),  overpowered  plaintiff,  bound  his 
hands  behind  him,  took  from  him  his  gun  and  pistol,  removed  him  to 
the  stable  lot,  and  soon  afterwards  delivered  him  to  a  peace  officer  (a 
deputy  sheriff)  who  happened  to  be  at  the  house  on  other  business,  and 
that  the  plaintiff  was  then  unbound  and  removed  by  the  officer,  accom- 
panied by  the  defendant  and  one  other  person,  to  Owensboro,  the 
county  seat.  It  is  claimed  that  a  kodak  picture  was  taken  of  some 
part  of  the  scene,  but  it  does  not  appear  that  defendant  was  concerned 
with  that  phase  of  the  case,  but  that,  if  it  was  done  by  anybody,  it  was 
by  his  wife,  now  dead.  It  seems  to  the  court  that  all  parties  were  law- 
fully on  the  premises  at  the  time,  and  that  the  whole  case  must  turn, 
not  upon  the  provisions  of  the  contract,  nor  anybody's  rights  there- 
under, but  upon  the  facts  immediately  connected  with  the  affray  on 
January  25th.  If  this  be  correct,  then  the  court,  upon  the  plaintiff's 
own  showing,  is  clearly  of  opinion  that  the  defendant  had  reasonable 
grounds  for  believing,  when  he  appeared  upon  the  scene,  that  his  wife 
was  apparently  in  great  jeopard}'  and  danger  of  her  life  in  her  struggle 
with  a  man  so  thoroughly  armed  as  was  the  plaintiff;  that  if  the  de- 
fendant had  then  been  armed,  and  had  taken  the  plaintiff's  life,  the 
law  would  have  excused  him ;  that  if  he  might,  in  the  then  apparently 
necessary  defense  of  his  wife,  have  taken  plaintift"'s  life,  he  was  cer- 
tainly excusable  in  doing  for  her  protection,  and  probably  his  own, 
the  lesser  things  of  binding  and  disarming  the  plaintiff,  so  as  to  prevent 
further  mischief  until  he  could  deliver  plaintiff  to  a  peace  officer,  pre- 
cisely as  he  might  be  justified  in  binding  a  madman  or  a  dangerous 
beast,  who  had  as  ample  power  to  do  mischief  as  this  hea\'ily-armed 
man  had  upon  this  occasion;  and  that  it  does  not  appear  that  defendant 


724  WOOD    V.    STATE.  [CHAP.  V. 

used  more  force  than  was  apparently  necessary  to  prevent  great  bodily 
harm  to  his  wife,  and  probably  others.  Whether  plaintiff  had  any 
right  to  enforce  his  claims  to  the  possession  of  defendant's  premises  by 
force  of  arms  may  well  admit  of  doubt,  as  he  was  only  defendant's 
employee,  and  not  his  tenant  in  the  ordinary  sense;  and,  if  plaintiff 
had  not  such  right,  then  he  was  a  gross  violator  of  the  law  in  seeking  to 
remedy  his  supposed  wrongs  in  so  violent  a  manner,  and  should  take  the 
consequences  without  complaint.  Indeed,  all  things  considered,  the 
court  is  inclined  to  think  that  the  plaintiff  got  off  quite  as  well  as  he 
could  have  reasonably  expected.  Upon  the  facts  stated  under  oath  by 
the  plaintiff,  if  the  jury  were  to  find  a  verdict  in  his  favor  the  court 
would  not  permit  it  to  stand.  For  the  reasons  thus  briefly  stated,  the 
court  will  sustain  the  motion,  and  instruct  the  jury  to  find  for  the 
defendant. 


WOOD  V.  STATE. 

Supreme  Court  of  Alabama,  1900. 

[Reported  128  Ala.  27.] 

Appeal  from  the  Criminal  Court  of  Jefferson. 

Tried  before  the  Hon.  Samuel  E.  Greene. 

Felix  Wood,  the  appellant,  and  Marion  Wood,  together  with  four 
others,  were  jointly  indicted  for  an  assault  with  intent  to  murder  one 
John  A.  Brooks.  The  appellant  was  con\acted  of  the  offense  charged, 
and  sentenced  to  the  penitentiary  for  a  term  of  ten  years. 

On  the  trial  of  the  cause,  it  was  shown  that  John  A.  Brooks,  the 
person  alleged  to  have  been  assaulted,  was  the  conductor  of  a  street 
car,  which  ran  from  Birmingham  to  East  Lake,  and  that  on  the  day 
before  the  offense  charged  was  committed,  John  A.  Brooks  and  Marion 
Wood,  brother  of  the  defendant  Felix  Wood,  had  a  difficulty;  and, 
on  the  day  of  the  assault  complained  of,  Marion  Wood  boarded  the 
car  upon  which  Brooks  was  conductor  on  Twenty-second  Street  in 
Birmingham,  and  that  Felix  Wood  and  the  other  person  jointly  indicted 
with  him,  boarded  the  car  on  Twenty-fourth  Street,  and  they  all  went 
to  East  Lake  on  said  car;  that  Felix  Wood,  when  he  boarded  the  car, 
carried  a  Winchester  rifle  with  him,  in  a  canvas  case;  that  upon 
reaching  East  Lake,  the  defendant  and^  the  persons  with  him  alighted 
from  the  car;  that  Marion  Wood  went  up  to  Brooks,  and,  after  a  few 
words  between  them,  Brooks  and  Marion  Wood  drew  their  pistols  and 
began  firing  at  each  other.    At  this  time  defendant,  Felix  Wood,  who 


SECT.  III.]  WOOD   V.    STATE.  725 

was  standing  some  twenty-five  or  thirty  feet  away,  and  who  had  taken 
his  rifle  from  its  cover  during  the  conversation  between  Marion  Wood 
and  Brooks,  fired  upon  said  Brooks  with  the  rifle. 

During  the  examination  of  John  A.  Brooks,  as  a  witness  for  the 
State,  he  was  asked  the  following  question:  "What  did  Marion  Wood 
say  to  you,  when  he  came  to  the  rear  of  the  car  at  East  Lake?"  The 
defendant  objected  to  this  question  upon  the  ground  that  it  called  for 
irrelevant  and  immaterial  exndence.  The  court  overruled  the  objec- 
tion, and  defendant  duly  excepted.  In  answer  to  the  question  the 
witness  stated  that  as  Marion  Wood  came  up  to  him  he  said  to  the  wit- 
ness: "  I  came  to  see  you  about  what  you  did  to  me  yesterday."  Wit- 
ness then  further  testified  that  at  that  time  Marion  Wood  had  his  hand 
in  his  coat  pocket,  and  that  the  witness  stated  to  him :  "If  you  want  to 
talk  to  me,  take  your  hand  out  of  your  pocket";  and  that  he  saw  what 
appeared  to  be  and  was  a  pistol  in  the  hands  of  Marion  Wood;  that 
said  Wood  spoke  in  an  ordinary  tone  of  voice,  and  that  as  Felix  Wood, 
the  defendant,  was  twenty-five  or  thirty  feet  away,  the  witness  could 
not  say  whether  defendant  heard  what  passed  between  them  or  not. 
The  defendant  then  moved  the  court  to  exclude  statement  made  by 
Marion  W^ood,  as  witness,  upon  the  grounds  that  it  was  hearsay  e\i- 
dence,  and  irrelevant  and  immaterial  evidence.  The  court  overruled 
the  motion,  and  defendant  duly  excepted. 

Upon  cross-examination  of  witness  (Brooks)  the  defendant  asked  him 
several  questions  seeking  to  disclose  the  particulars  of  the  previous 
difficulty  between  said  Brooks  and  Marion  Wood.  To  each  of  these 
questions  the  State  objected;  the  court  sustained  the  objection,  and 
the  defendants  separately  excepted  to  each  of  such  rulings. 

The  testimony  for  the  defendant  tended  to  show  that  John  A. 
Brooks  fired  upon  Marion  Wood  without  provocation;  that  the  de- 
fendant, who  was  the  brother  of  Marion  Wood,  but  who  knew  nothing 
of  the  particulars  of  the  controversy  between  him  and  said  Brooks,  fired 
his  rifle  when  Brooks  shot  at  his  brother,  but  that  he  did  not  aim  the 
rifle  at  Brooks  and  did  not  shoot  until  Brooks  had  quit  shooting  at  his 
brother  and  shot  at  the  defendant  twice. 

The  defendant  testified  that  the  first  thing  he  saw  after  his  brother, 
Marion  Wood,  went  up  to  Brooks,  Brooks  had  pulled  his  pistol  and 
was  firing  at  his  brother,  who,  at  that  time,  had  not  made  any  demon- 
stration towards  Brooks ;  and  that  he,  the  defendant,  did  not  hear  any 
of  the  conversation  between  Brooks  and  his  brother. 

Upon  the  introduction  of  all  the  evidence  the  defendant  requested 
the  court  to  give  the  jury  the  following  charges  and  the  defendant 
severally  excepted  to  the  refusal  to  give  each  of  them  as  asked : 

"  (1)  If  the  jury  believe  from  the  evidence  that  the  defendant, 
seeing  his  brother  Marion  Wood  in  a  desperate  encounter  with  Brooks, 
shot  at  Brooks  for  the  purpose  of  defending  his  brother,  without 
knowing  the  origin  of  the  difficulty,  the  jury  may  consider  these  facts 


726  WOOD    V.   STATE.  [CHAP.  V. 

in  determining  whether  the  defendant  acted  maUciously,  premedita- 
tedly,  and  deliberately  or  justifiably."  "  (2)  If  the  jury  believe  all  the 
evidence  they  cannot  convict  the  defendant  of  an  assault  with  intent 
to  murder."  "  (3)  The  court  charges  the  jury  that  defendant  was  not 
bound  to  inquire  into  the  origin  of  the  difficulty  between  his  brother 
and  Brooks,  but  had  the  right  to  act  from  appearances."  "  (4)  The 
court  charges  the  jury  that  defendant  would  not  be  guilty  as  charged 
in  the  indictment  if  when  he  fired  his  brother  was  apparently  in  danger 
of  death  or  great  bodily  harm,  at  the  hands  of  Brooks."  "  (5)  If  the 
jury  have  a  reasonable  doubt  from  the  evidence  of  any  one  of  the  fol- 
lowing propositions  being  true,  they  must  acquit  him  of  an  assault  with 
intent  to  murder:  1st.  That  the  defendant  acted  maliciously,  2d. 
That  he  acted  deliberately.    3d.  That  he  acted  with  premeditation." 

McClellan,  C.  J.  One  who  intervenes  in  a  pending  difficulty  in 
behalf  of  a  brother  and  takes  the  life  of  the  other  original  combatant 
stands  in  the  shoes  of  the  brother  in  respect  of  fault  in  bringing  on  the 
difficulty,  and  he  cannot  defend  upon  the  ground  that  his  brother  was 
in  imminent  and  deadly  peril  and  could  not  retreat,  unless  the  latter 
could  have  defended  upon  that  ground  had  he  killed  his  assailant. 
Hence  in  such  cases  it  is  a  material  inquiry  whether  defendant's  brother 
was  at  fault  in  bringing  on  the  difficulty  with  the  deceased,  and  the 
same  doctrine  obtains,  of  course,  where  the  charge  is  assault  with  intent 
to  murder;  and  as  bearing  upon  this  inquiry  presented  in  the  case  at 
bar  the  court  properly  admitted  the  testimony  of  Brooks  to  the  effect 
that  Marion  Wood  approached  him  with  his  hand  in  his  pocket  and 
apparently  on  a  pistol  and  said:  "I  came  to  see  you  about  what  you 
did  to  me  yesterday."  It  is  of  no  consequence  that  Felix  Wood,  the 
defendant,  did  not  hear  this  remark  and  was  not,  when  he  intervened, 
aware  of  any  fault  on  the  part  of  Marion  in  bringing  on  the  difficulty: 
He  entered  into  the  combat  at  his  own  peril.  Gibson  r.  State,  91  Ala.  64; 
Whatley  v.  State,  91  Ala.  108;  Karr  v.  State,  106  Ala.  1.  Upon  this 
principle,  as  well  as  for  other  considerations,  charges  1,  3,  and  4  were 
properly  refused  to  the  defendant.  Moreover,  the  evidence  referred 
to  was  clearly  admissible  upon  the  further  grounds,  first,  that  it  was  of 
the  res  gestae  of  the  main  fact;  and,  second,  there  was  other  evidence 
from  which  the  jury  might  have  found  that  the  difficulty  was  the  result 
of  a  conspiracy  between  Marion  Wood,  the  defendant,  and  others  to 
assault  and  kill  Brooks. 

The  trial  court  did  not  err  in  excluding  testimony  going  to  the  par- 
ticulars of  the  pre^^ous  difficulty  between  Brooks  and  Marion  Wood. 
Stewart  v.  State,  78  Ala.  436. 

Charge  5  was  properly  refused.  It  is  not  essential  to  a  conviction 
of  an  assault  Miih  intent  to  murder  that  the  defendant  acted  deliber- 
ately and  with  premeditation.  Meredith  v.  State,  60  Ala.  441;  Law- 
rence V.  State,  84  Ala.  425;  Welch  v.  State,  124  Ala.  41;  Gilmore  v. 
State,  126  Ala.  21. 


SECT,  in.]  PEOPLE   V.   COOK.  727 

The  affirmative  charge  was  of  course  properly  refused  to  defendant, 
there  being  evidence  tending  to  prove  every  averment  of  the  indict- 
ment and  the  plea  being  "not  guilty." 

Affirmed. 


PEOPLE  V.   COOK. 
Supreme  Court  of  Michigan.     1878. 

[Reported  39  Michigan,  236.] 

Marston,  J.^  The  respondent  was  tried  upon  an  information  charg- 
ing him  with  having  committed  the  crime  of  murder,  and  was  convicted 
of  manslaughter.  The  case  comes  here  upon  exceptions  before  sen- 
tence. The  shooting  of  the  deceased  by  respondent  was  not  denied  on 
the  trial.  The  defence  relied  on  was  justifiable  homicide,  committed  in 
order  to  prevent  the  abduction  and  seduction  of  respondent's  sister  by 
the  deceased. 

There  is  not  a  scintilla  of  evidence  in  the  case  to  establish  this  de- 
fence, unless  the  fact  that  he  had  reason  to  believe  that  deceased  was 
about  to  seduce  and  debauch  his  sister  would  be  a  justification. 

It  was  said  that  the  testimony  given  on  the  trial  showed  the  reputa- 
tion of  the  deceased  for  chastity  was  bad,  of  which  fact  the  respondent 
had  knowledge  ;  that  deceased  had  been  arrested  for  the  seduction  of  a 
Miss  Briggs ;  that  he  had  publicl}'  stated  in  respondent's  presence  and 
hearing  the  manner  in  which  he  had  seduced  her ;  that  while  under 
such  arrest  he  had  stated  that  he  wanted  to  seduce  just  one  more  girl, 
Sarah  Cook,  but  this  fact  had  not  been  brought  to  respondent's  knowl- 
edge ;  that  the  night  before  the  shooting  deceased  and  Sarah  Cook 
had  been  out  together  quite  late  ;  that  on  the  morning  of  the  shooting, 
respondent's  sister,  Sarah  Cook,  left  the  breakfast  table  and  went  over 
to  the  house  of  deceased  ;  that  she  shortly  afterwards  returned,  took 
her  wearing  apparel,  and  announced  that  she  was  going  off  with  Batey, 
bade  the  famil}-  good-by,  and  said  they  might  never  see  her  again. 

The  defence  claimed  the  farther  fact  to  be  that  Sarah  Cook  at  that 
time  was  under  the  influence  of  drugs,  administered  to  her  by  deceased, 
in  order  to  enable  him  to  accomi)lish  his  purpose,  and  that  the  shooting 
was  believed  bj-  the  respondent  to  be  necessar}-  in  order  to  prevent  such 
a  result. 

Blackstone  says  the  English  law  justifies  a  woman  killing  one  who 
attempts  to  ravish  her,  and  so  too  the  husband  or  father  may  justify 

*  Part  of  the  opinion  only  is  given. 


728  STATE    V.   MELTON.  [CHAP.  V. 

killing  a  man  who  attennpts  a  rape  upon  his  wife  or  daughter ;  but  not 
if  he  takes  them  iu  adultery  by  consent,  for  the  one  is  forcible  and  felo- 
nious but  not  the  other.  The  principle,  he  says,  which  runs  through 
all  laws  seems  to  be  this  ;  that  where  a  crime  in  itself  capital  is  endeav- 
ored to  be  committed  by  force,  it  is  lawful  to  repel  that  force  bj'  the 
death  of  the  party  attempting.  It  is  not  claimed  that  any  direct  force 
was  attempted  in  this  case,  but  that  the  felony  intended  was  to  be 
accomplished  bj-  the  assistance  of  drugs  administered  or  to  be  admin- 
istered, and  that  where  the  power  of  resistance  is  thus  overcome,  and 
advantage  thereof  taken  to  violate  her  person,  the  act  would  be  rape, 
and  for  such  purpose  the  law  would  conclusively  presume  that  sufficient 
force  was  used,  at  the  time  intercourse  took  place,  to  so  characterize 
the  act.  The  present  case,  however,  falls  short  of  coming  within  the 
principles  which  would  justify  the  taking  of  life.  The  utmost  that 
can  here  be  said  is  that  the  deceased  had  used  and  was  likely  to  use 
fraudulent  means,  b}'  administering  drugs,  to  excite  the  passions,  or 
overcome  the  resistance  he  otherwise  would  have  been  sure  to  encounter, 
in  order  to  accomplish  his  purpose.  80  far  as  he  had  then  gone,  even 
conceding  all  that  is  claimed,  fraudulent  and  not  forcible  means  had 
been  resorted  to,  which  would  not  create  that  necessity  for  immediate 
action  on  the  part  of  the  accused,  by  the  taking  of  life,  to  prevent  an 
attempted  forcible  felony.  Ample  time  and  opportunity  existed  to  en- 
able the  accused  to  resort  to  other  available  and  adequate  means  to 
prevent  the  anticipated  injur}'.  The  evil  threatened  could  have  been 
prevented  by  other  means  within  the  reach  and  power  of  the  accused. 
There  was  no  such  immediate  danger,  nor  would  the  facts  warrant  the 
apprehension  of  such  immediate  danger  as  would  justify  a  resort  to  the 
means  adopted. 


STATE  V.  MELTON. 
Supreme  Court  of  Missouri,  1891. 

[Reported  102  Mo.  683.] 

Macfarlane,  J.  Defendant  was  indicted  under  section  1263,  Rev. 
St.  1879,  for  an  assault  with  intent  to  kill.  E\-idence  was  offered  tend- 
ing to  prove  such  assault,  and  by  means  thereof  the  assaulted  party  was 
seriously  wounded  on  the  head.  Defendant  was  con\ncted,  and  ap- 
pealed to  this  court.^  .  .  . 

Defendant  asked  the  following  instruction :  "(1)  The  court  instructs 

the  jury  that,  although  they  may  believe  from  the  evidence  that  the 

defendant  struck  and  w^ounded  Swicegood,  yet  if  it  is  further  shown 

by  the  evidence  that  such  striking  and  w^ounding  were  done  for  the  pur- 

1  Part  of  the  opinion  is  omitted.  —  Ed 


SECT.  III.]  ANONYMOUS.  729 

pose  of  preventing  the  commission  of  a  felony  upon  Ir\dn  Melton,  his 
brother,  or  preventing  said  Swicegood  from  doing  said  Irvin  Melton 
some  great  bodily  harm,  they  will  return  a  verdict  of  not  guilty"  — 
which  the  court  amended  by  adding  thereto  the  following:  "Unless 
you  further  find  from  the  evidence  that  the  said  Ir\-in  Melton  sought 
or  brought  on  the  difficulty  with  said  Swicegood."  This  amendment 
is  complained  of.  There  was  evidence  tending  to  prove  that  Ivvin 
Melton,  who  was  a  brother  of  defendant,  both  sought  and  brought  on 
the  difficulty;  in  fact,  the  evidence  tended  strongly  to  prove  that  the 
two  brothers  went  to  the  entertainment  with  the  intention  of  creating 
a  difficulty  with  Swicegood.  The  right  to  defend  his  brother  was  no 
greater  than  the  brother's  right  to  defend  himself.  Counsel,  in  sup- 
port of  his  position  that  the  court  improperly  amended  the  instruction, 
cites  the  recent  authorities  of  this  State,  conmiencing  with  Partlow's 
Case,  90  Mo.  608,  4  S.  W.  Rep.  14,  in  which  the  question  of  self-defense 
in  murder  cases  have  been  discussed,  and  insists  that  under  these  au- 
thorities he  had  a  right  to  the  instructions  as  asked.  According  to  this 
contention,  a  party  could  provoke  and  bring  on  a  difficulty,  and,  if 
afterwards  hard  pressed,  could  wound  and  injure  his  antagonist,  and 
go  free  of  punishment,  on  the  ground  of  self-defense.  The  entire 
scope  and  meaning  of  these  authorities  are  misapprehended.  The 
cases  cited  were  all  trials  for  murder,  and  it  was  not  held  in  these  cases 
that  self-defense,  under  the  circumstances,  acquitted  the  defendant  of 
all  crime,  but  simply  cut  down  his  offense  from  a  higher  to  a  lower  de- 
gree of  homicide.  In  the  Gilmore  Case,  95  Mo.  560,  8  S.  W.  Rep.  359, 
912,  the  question  is  made  so  clear  that  any  further  consideration  of  it 
is  useless.  These  cases  have  no  application  to  assaults  merely.  The 
amendment  of  the  instruction  was  proper.  For  the  error  in  giving  the 
first  instruction  the  judgment  is  reversed  and  cause  remanded.  All 
concur. 


ANONYMOUS.         J^JyT^^-    ^''"^ 

King's  Bench.    1506.  ^VUP^  lf2>j2^'^^ 

[Reported  Year  Book,  21  H.  VIL  39,  pi  50.] 

FiNETJX,  C.  J.     If  one  is  in  his  house,  and  hears  that  such  a  one  will 
come  to  his  house  to  beat  him.  he  may  well  assemble  folk  of  his  friends         .      Jff^'^ 
and  neighbors  to  help  him,  and  aid  in  the  safeguard  of  his  person  ;  but  'loK^  (^  . 

if  one  were  threatened  that  if  he  should  come  to  such  a  market,  or  into  (2jjJ^f'fi' 
such  a  place,  he  should  there  be  beaten,  in  that  case  he  could  not  assem-  -j^iJ^^' 
ble  persons  to  help  him  go  there  in  personal  safety,  for  he  need  not  go  C{V^>^ 
there,  and  he  may  have  a  remedy  by  surety  of  the  peace. ^    But  a  man's 

^  See  Succession  of  Irwin,  12  La.  Ann.  676.  —  Ed.  Aj^  /vv^^^M 


730  wild's  case.  [chap.  v. 

house  is  his  castle  and  his  defence,  and  where  he  has  a  peculiar  right 
to  stay,  &c.  And  all  the  justices  agreed  that  a  servant  may  beat  one 
in  defence  of  his  master.  Tremaine  J.,  said  that  a  servant  may  kill 
one  in  defence  of  his  master's  life,  if  he  cannot  otherwise  save  it  T.  14. 
H.  7.  Tr.  246. 


COOPER'S   CASE. 
King's  Bench.     1639. 

[Reported  Croke  Car.  544] 

Cooper  being  indicted  in  the  county  of  Surrey  of  the  murder  of  W.  L. 
in  Southwark  with  a  spit,  he  pleaded  not  guilty ;  and  upon  his  arraign- 
ment it  appeared  that  the  said  Cooper,  being  a  prisoner  in  the  King's 
Bench,  and  l3ing  in  the  house  of  one  Anne  Carricke,  who  kept  a  tavern 
in  the  Rules,  the  said  W.  L.  at  one  of  the  clock  in  the  night,  assaulted 
the  said  house,  and  offered  to  break  open  the  door,  and  brake  a  staple 
thereof,  and  swore  he  would  enter  the  house  and  slit  the  nose  of  the 
said  Anne  Carricke,  because  she  was  a  bawd,  and  kept  a  bawdj'-house. 
And  the  said  Cooper  dissuading  him  from  those  courses,  and  reprehend- 
ing him,  he  swore,  that  if  he  could  enter  he  would  cut  the  said  Cooper's 
throat ;  and  he  brake  a  window  in  the  lower  room  of  the  house,  and 
thrust  his  rapier  in  at  the  window  against  the  said  Cooper,  who  in 
defence  of  the  house  and  himself  thrust  the  said  W.  L.  into  the  eye,  of 
which  stroke  he  died. 

The  question  w^as,  whether  this  were  within  the  statute  of  24  Hen. 
8,  c.  5. 

The  Court  was  of  opinion,  that  if  it  were  true  he  brake  the  house 
■with  an  intent  to  commit  burglary,  or  to  kill  any  therein,  and  a  party 
within  the  house  (although  he  be  not  the  master,  but  a  lodger  or 
sojourner  therein)  kill  him  who  made  the  assault  and  intended  mischief 
to  any  in  it,  that  it  is  not  felony,  but  excusable  by  the  said  statute  of 
24  Hen.  8,  c.  5,  which  was  made  in  affirmance  of  the  common  law; 
wherefore  the  jury  were  appointed  to  consider  of  the  circumstances  of 
the  fact ;  and  the}',  being  a  substantial  jury  of  Surrev,  found  the  said 
Cooper  not  guilty  upon  this  indictment ;  whereupon  he  was  discharged. 


WILD'S  CASE. 
Liverpool  Assizes.    1837. 

[Reported  2  Lewin,  214.] 

The  prisoner  was  indicted  for  manslaughter. 

It  appeared  that  the  deceased  had  entered  the  prisoner's  house  in  his 
absence.    The  prisoner  on  returning  home  found  him  there,  and  desired 


SECT.  III.]  STATE   V.   PATTERSON".      .  731 

him  to  withdraw,  but  he  refused  to  go.  Upon  this  words  arose  between 
them,  and  the  prisoner,  becoming  excited,  proceeded  to  use  force,  and 
by  a  kick  which  he  gave  to  the  deceased,  caused  an  injury  which  pro- 
duced his  death. 

Alderson,  B.  a  kick  is  not  a  justifiable  mode  of  turning  a  man  out 
of  30ur  house,  though  he  be  a  trespasser.  If  a  person  becomes  excited, 
and  being  so  excited  gives  to  another  a  kick,  it  is  an  unjustifiable  act. 

If  the  deceased  would  not  have  died  but  for  the  injury  he  received, 
the  prisoner  having  unlawfully  caused  that  injury,  he  is  guilty  of  man- 
slaughter. 


STATE   V.  PATTERSON. 
Supreme  Court  of  Vermont.    1878. 

[Rejiorted  45  Vermont,  308.] 

Barrett,  J  A  It  is  not  deemed  needful  for  the  purposes  of  this  case, 
with  reference  to  its  future  prosecution,  to  discuss  specifically  any  other 
subject,  except  that  of  the  dwelling-house  being  one's  castle,  as  bearing 
upon  his  right  to  kill  or  to  use  deadly  weapons  in  defence  of  it.  This 
is  presented  in  the  third  request  in  behalf  of  the  respondent,  which  is, 
in  the  language  used  by  Holroyd,  J.,  in  charging  the  jury  in  Meade's 
Case,  infra,  viz. :  "  The  making  of  an  attack  upon  a  dwelling,  and  espe- 
•cially  in  the  night,  the  law  regards  as  equivalent  to  an  assault  on  a 
man's  person,  for  a  man's  house  is  his  castle."  The  purpose  of  this 
request  seems  to  have  been  to  justify  the  killing  with  the  gun,  as  a 
lawful  mode  and  means  of  defending  the  castle,  as  well  as  the  person 
within  it.  Looking  to  the  state  of  the  evidence,  it  is  not  altogether 
obvious  what  there  was  in  the  ease  to  warrant  its  being  claimed  that 
the  respondent  killed  Flanders  as  a  means  of  defending  himself  or  his 
castle.  It  was  claimed  in  behalf  of  the  prosecution,  and  the  evidence 
given  in  that  behalf  showed  that  the  gun  was  not  fired  at  Flanders  as 
a  measure  of  force,  to  repel  and  prevent  him  from  breaking  into  the 
house.  Moreover,  in  the  exceptions  it  is  said:  "The  respondent  testi- 
fied that  he  fired  to  the  ground,  and  the  object  in  firing  was,  not  to  hit 
them,  but  to  scare  them  awa}'."  The  respondent  seems  not  to  have 
regarded  it  a  case,  or  a  conjuncture,  in  which  it  was  needful  or  expedi- 
ent to  use  a  deadl}-  weapon  as  a  means  of  forceful  resistance  to  meet 
and  repel  an  assault  on  his  house  —  whatever  such  assault  in  fact 
was  —  or  to  protect  himself  from  an}'  threatened  or  feared  assault  on 
his  person.  The  gun,  loaded  with  powder  alone,  would  have  served  all 
the  needs  of  the  occasion,  and  of  the  exigency  which  the  respondent 
supposed  then  to  exist  and  to  press  upon  him. 

Nevertheless,  the  point  was  made  by  said  third  request.    It  was  indi- 

1  Part  of  the  opinion,  not  relating  to  the  question  of  justification,  has  been  omitted. 


732  STATE   v.    PATTERSON.  [CHAP.  V- 

cated  in  the  charge  that  the  case  State  v.  Hooker,  17  Vt.  670,  was 
invoked  in  support  of  it,  and  it  is  cited  in  this  court  for  the  same  pur- 
pose. That  case  professes  to  decide  onl3'  the  question  involved  in  and 
presented  by  it,  viz.,  whether  it  was  criminal  under  the  statute  for  the 
respondent  to  resist  an  officer  in  the  service  of  civil  process  within  his 
dwelling-house,  such  officer  having  unlawfull}'  broken  into  the  house 
for  the  purpose  of  making  such  service.  The  language  of  the  opinion 
is  to  be  interpreted  with  reference  to  the  case  and  the  question.  That 
case  in  no  respect  involved  the  subject  of  the  use  of  a  deadh'  weapon 
with  fatal  effect  in  defence  of  the  castle  ;  and  it  is  not  to  be  supposed 
that  the  judge  who  drew  up  the  opinion  was  undertaking  to  discuss  or 
propound  the  law  of  that  subject. 

To  come,  then,  to  the  subject  as  it  is  involved  in  this  case  under  said 
third  request.  In  Foster's  Crown  Law,  319,  it  is  said,  "The  books 
say  that  a  man's  house  is  his  castle  for  safety-  and  repose  to  himself  and 
family.''  In  Cook's  Case,  Cro.  Car.  537,  an  officer,  vvith  a  capias  ad 
satisfaciendum,  went  with  other  officers,  for  the  purpose  of  executing 
the  same,  to  the  dwelling-house  of  the  respondent,  and,  finding  him 
within,  demanded  of  him  to  open  the  door  and  suffer  them  to  enter. 
He  commanded  them  to  depart,  telling  them  they  should  not  enter. 
Thereupon,  they  broke  a  window,  and  afterwards  went  to  the  door  of 
the  house  and  offered  to  force  it  open,  and  broke  one  of  the  hinges; 
whereupon  Cook  discharged  his  musket  at  the  deceased  and  hit  him, 
and  he  died  of  the  wound.  "After  argument  at  the  bar,  all  the  justices, 
seriatim^  delivered  their  opinions,  that  it  was  not  murder,  but  man- 
slaughter ;  the  bailiff  was  slain  in  doing  an  unlawful  act  in  seeking  to 
break  open  the  house  to  execute  process  for  a  subject,  and  every  one 
is  to  defend  his  own  house.  Yet  they  all  held  it  was  manslaughter,  for 
he  might  have  resisted  him  without  killing  him  ;  and  when  he  saw  and 
shot  voluntarily  at  him,  it  was  manslaughter." 

That  was  one  of  the  earliest  cases,  and  was  full}'  considered  ;  and  it 
has  been  cited  in  all  the  books  on  criminal  law  since  its  decision  in 
1640  (15th  Car.  I.),  —  with  some  incorrectness  of  statement,  in  1  Hale 
P.  C.  458,  and  in  other  books  adopting  Hale's  text.  This  is  in  some 
measure  rectified  by  a  remark,  1  East  P.  C.  321,  322.  See  also  Roscoe 
Cr.  Ev.  758;  also  1  Bishop  Cr.  L.,  §  858,  n.  2  (5th  ed.).  It  is  to  be 
specially  noticed  that  what  made  it  manslaughter  was  that  in  order  to 
defend  his  castle,  it  was  not  necessarv  to  kill  the  bailiff. 

The  same  idea  of  necessity,  in  order  to  relieve  the  killing  from  being 
manslaughter,  exists  in  the  case  of  defending  one's  person,  as  stated  in 
]  Hawkins  P.  C.  113  :  "  Homicide  se  defendendo  seems  to  be  when  one 
who  has  no  other  possible  means  of  preserving  his  life  from  one  who 
combats  him  on  a  sudden  quarrel,  or  of  defending  his  person  from  one 
who  attempts  to  beat  him  (especially  if  sucli  attempt  be  made  upon  him 
in  his  own  house)  kills  the  person  by  whom  he  is  reduced  to  such  an 
inevitable  necessitj'." 

In  a  learned  note  in  2  Archb.  Cr  L.  225,  it  is  said :  "But  when  it  is 


SECT.  III.]  STATE    V.   PATTERSON.  733 

said  that  a  man  may  rightfully  use  as  much  force  as  is  necessary  for  the 
protection  of  his  person  and  propert}',  it  should  be  recollected  that  this 
rule  is  subject  to  this  most  important  modification.  —  that  he  shall  not, 
except  in  extreme  cases,  endanger  human  life,  or  great  bodily  harm. 
•  .  .  You  can  only  kill  to  save  life  or  limb,  or  prevent  a  great  crime, 
or  to  accomplish  a  necessary  public  duty."  It  is,  therefore,  clear  that  if 
one  man  deliberately  kills  another  to  prevent  a  mere  trespass  on  his  prop- 
erty- —  whether  that  trespass  could  or  could  not  otherwise  be  prevented 
—  he  is  guilty  of  murder.  If,  indeed,  he  had  at  first  used  moderate 
force,  and  this  had  been  returned  with  such  violence  that  his  own  life 
was  endangered,  and  then  he  killed  from  necessity,  it  would  have  been 
excusable  homicide.  Not  because  he  could  take  life  to  save  his  prop- 
erty, but  he  might  take  the  life  of  the  assailant  to  save  his  own. 

Harcourt's  Case,  5  Eliz.,  stated  1  Hale  P.  C.  485,  486,  shows  that 
this  doctrine  is  not  new.  "  Harcourt,  being  in  possession  of  the  house 
by  title,  as  it  seems,  A.  endeavored  to  enter,  and  shot  an  arrow  at  them 
within  the  house,  and  Harcourt,  from  within,  shot  an  arrow  at  those 
that  would  have  entered,  and  killed  one  of  the  company.  This  was 
ruled  manslaughter,  and  it  was  not  se  defendendo^  because  there  was 
no  danger  of  his  life  from  them  without."  What  was  thus  ruled  is  the 
key  to  the  author's  meaning  in  the  next  following  paragraph  of  his  book, 

which  see.  7^Ua>v-^-^ 

The  idea  that  is  embodied  in  the  expression  that  a  man's  house  is  his''  n  (j 

castle,  is  not  that  it  is  his  propert}-,  and,  as  such,  he  has  the  right  to   "/^/'^  ^yri(}-<^ 
defend  and  protect  it  by  other  and  more  extreme  means  than  he  might  j,^ 

lawfull}'  use  to  defend  and  protect  his  shop,  his  office,  or  his  barn.    The  C/XMx 

sense  in  which  the  house  has  a  peculiar  immunity  is  that  it  is  sacred  for 
the  protection  of  his  person  and  of  his  family.  An  assault  on  the  house 
can  be  regarded  as  an  assault  on  the  person  only  in  case  the  purpose 
of  such  assault  be  injury  to  the  person  of  the  occupant  or  members  of 
his  family,  and,  in  order  to  accomplish  this,  the  assailant  attacks  the 
castle  in  order  to  reach  the  inmates.  In  this  view,  it  is  said  and  settled 
that,  in  such  case,  the  inmate  need  not  flee  from  his  house  in  order  to 
escape  from  being  injured  by  the  assailant,  but  he  may  meet  him  at  the 
threshold,  and  prevent  him  from  breaking  in  by  anj*  means  rendered 
necessary  by  the  exigency  ;  and  upon  the  same  ground  and  reason  as 
one  may  defend  himself  from  peril  of  life,  or  great  bodil}-  harm,  b}' 
means  fatal  to  the  assailant,  if  rendered  necessary  by  the  exigency  of 
the  assault. 

This  is  the  meaning  of  what  was  said  by  Holrovd,  J.,  in  charging  the 
jury  in  Meade's  Case,  1  Lewin  C.  C.  184.  Some  exasperated  sailors 
had  ducked  Meade,  and  were  in  the  act  of  throwing  him  into  the  sea, 
when  he  was  rescued  by  the  police.  As  the  gang  were  leaving,  the}' 
threatened  that  they  would  come  by  night  and  pull  his  house  down. 
In  the  middle  of  the  night  a  great  number  came,  making  menacing 
demonstrations.  Meade,  under  an  apprehension,  as  he  alleged,  that  his 
life  and  property  were  in  danger,  fired  a  pistol,  by  which  one  of  the 


734  STATE   V.    PATTERSON.  [CHAP.  V. 

party  was  killed.  Meade  was  indicted  for  murder.  Upon  that  state  of 
facts  and  evidence,  the  judge  said  to  tlie  jur}' :  "A  civil  trespass  will 
not  excuse  the  firing  of  a  pistol  at  a  trespasser  in  sudden  resentment 
or  anger,  &c.  .  .  .  But  a  man  is  not  authorized  to  fire  a  pistol  on  every 
intrusion  or  invasion  of  his  house.  He  ought,  if  he  has  reasonable 
opportunity',  to  endeavor  to  remove  him  without  having  recourse  to 
the  last  extremity.  But  the  making  an  attack  upon  a  dwelling,  and 
especially  at  night,  the  law  regards  as  equivalent  to  an  assault  on  a 
man's  person  ;  for  a  man's  house  is  his  castle  ;  and,  therefore,  in  the 
eye  of  the  law,  it  is  equivalent  to  an  assault;  but  no  words  or  singing 
are  equivalent  to  an  assault ;  nor  will  they  authorize  an  assault  in 
return,  &c.  .  .  .  There  are  cases  where  a  person  in  heat  of  blood  kills 
another,  that  the  law  does  not  deem  it  murder.  l)ut  lowers  the  offence 
to  manslaughter ;  as,  where  a  part}'  coming  up  by  way  of  making  an 
attack,  and  without  there  being  any  previous  apprehension  of  danger, 
the  part}'  attacked,  instead  of  having  recourse  to  a  more  reasonable 
and  less  violent  mode  of  averting  it,  having  an  opportunity  so  to  do, 
fires  on  the  impulse  of  the  moment.  In  the  present  case,  if  3'ou  ai-e  of 
opinion  that  the  prisoner  was  really  attacked,  and  that  the  party  were 
on  the  point  of  breaking  in,  or  likel}'  to  do  so,  and  execute  the  threats 
of  the  day  before,  he,  perhaps,  was  justified  in  firing  as  he  did.  If  you 
are  of  opinion  that  he  intended  to  fire  over  and  frighten,  then  the  case 
IS  one  of  manslaughter  and  not  of  self-defence." 

The  sense  in  which  one's  house  is  his  castle,  and  he  may  defend  him- 
self within  it,  is  shown  b}'  what  is  said  m  1  Hale  P.  C.  486,  that  ''in 
VuLd  *^^^^  ^^  ^^  assaulted  in  his  own  house,  he  need  not  flee  as  far  as  he  can, 
«  as  in  other  cases  of  se  defendendo,  for  he  hath  the  protection  of  his 
rf\JJ-ol  house  to  excuse  him  from  fl^'ing,  as  that  would  be  to  give  up  the  pro- 
tection of  his  house  to  his  adversary  by  flight."  Now,  set  over  against 
that  what  is  said  in  1  Russell,  662,  and  the  true  distinction  between  the 
house  as  property,  on  the  one  hand,  and  as  castle  for  protection  on  the 
other,  is  very  palpable,  viz. :  "If  A.,  in  defence  of  his  house,  kill  B.,  a 
trespasser,  who  endeavors  to  make  an  entry  upon  it,  it  is,  at  least,  com- 
mon manslaughter,  unless,  indeed,  there  were  danger  of  life  ; "  p.  663. 
'■But  where  the  trespass  is  barely  against  the  property  of  another,  the 
law  does  not  admit  the  force  of  the  provocation  as  sufficient  to  warrant 
the  owner  in  making  use  of  a  deadly  or  dangerous  weapon  ;  more  par- 
ticularl}'  if  such  violence  is  used  after  the  party  has  desisted  from  the 
trespass."  In  Carroll  v.  State,  23  Ala.  36,  it  is  said :  "  The  owner  may 
resist  the  entry  into  his  house,  but  he  has  no  right  to  kill,  unless  it  be 
rendered  necessary'  in  order  to  prevent  a  felonious  destruction  of  his 
property,  or  to  defend  himself  against  loss  of  life,  or  great  bodih'  harm." 
Cited  2  Bishop  Crim.  Law,  §  707,  5th  ed.  That  case  impresses  us  dif- 
ferently from  what  it  does  the  learned  author,  as  indicated  by  his  remark 
prefacing  the  citation. 

As  developing  and  illustrating  the  prevailing  idea  of  the  law  as  to 
what  will  justify  homicide  se  et  sua  defendendo,  it  is  not  without  inter- 


SECT.  III.]  STATE   V.   PATTERSON.  735 

est  apon  the  point  now  under  consideration,  to  advert  to  what  is  said 
upon  the  general  subject.  In  McNally,  562,  it  is  said:  "The  injured 
part}'  may  repel  force  by  force  in  defence  of  his  person,  habitation,  or 
property,  against  one  who  manifestly  intendeth  and  endeavoreth  by 
violence  or  surprise  to  commit  a  known  felony-  upon  either.  In  these 
eases  he  is  not  obliged  to  retreat,  but  may  pursue  his  adversary  until 
he  findeth  himself  out  of  danger ;  and  if  in  such  conflict  he  happeneth 
to  kill,  such  killing  is  justifiable."  Wharton  incorporates  this  into  his 
work  as  text.  The  same  is  found  in  the  older  books.  1  Hale  P.  C.  485, 
486  ;  also  in  Foster's  Crown  Law,  273  ;  1  Russell,  667  ;  and  in  othei 
books,  ad  lib.  But  to  apprehend  this  in  its  true  scope  and  application, 
it  is  important  to  have  in  mind  what  is  said  in  1  Russell,  668:  "The 
rule  clearly  extends  onl}-  to  cases  of  felony  ;  for,  if  one  come  to  beat 
another,  or  take  his  goods  merely  as  a  trespasser,  though  the  owner 
may  justify  the  beating  of  him  so  far  as  to  make  him  desist,  yet  if  he 
kill  him,  it  is  manslaughter.  .  .  .  No  assault,  however  violent,  will  jus- 
tify killing  the  assailant  under  a  plea  of  necessity,  unless  there  be  a 
manifestation  of  felonious  intent."  See  Archb.  Crim.  Law,  221,  cited 
9  C.  &  P.  24. 

This  covers  the  cases  of  statutory  justification  of  homicide,  both  under 
our  own,  and  under  the  English  statutes,  and,  in  principle,  and  in  rea- 
son, it  is  in  keeping  with  the  common  law  as  to  se  defendendo,  in  defining 
the  scope  of  which  in  this  respect,  it  is  well  laid  down  that,  '■'  before  a 
person  can  avail  himself  of  the  defence  that  he  used  a  weapon  in  defence 
of  his  life,  it  must  appear  that  that  defence  was  necessary  to  protect 
his  own  life,  or  to  protect  himself  from  such  serious  bodily  harm  as 
would  give  him  reasonable  apprehension  that  his  life  was  in  immediate 
danger."    1  Russell,  661. 

The  law  of  the  subject,  as  given  in  the  books  thus  cited  and  referred 
to,  seems  to  have  been  adequately  apprehended  by  the  court,  and,  so 
far  as  we  can  judge  from  what  is  shown  by  the  record  before  us,  it  was 
not  administered  erroneoush'  or  improperly  in  the  trial,  as  against  the 
respondent. 

If  it  were  to  be  assumed  that  the  defence  might  legitimate!}-  claim 
that  there  was  an  assault  on  the  house,  with  the  intent  either  of  taking 
the  life  of  the  respondent  or  doing  to  him  great  bodih'  harm,  the 
respondent  would  be  justified  in  using  a  deadl}'  weapon,  if  it  should  be 
necessary  in  order  to  prevent  the  perpetration  of  such  crime,  or  if, 
under  the  existing  circumstances  attending  the  emergency,  the  respond- 
ent had  reason  to  believe,  and  was  warranted  in  believing,  and,  in  fact, 
did  believe,  that  it  was  necessary  in  order  to  prevent  the  commission 
of  such  crime.  In  case  the  purpose  of  the  assailant  was  to  take  life, 
or  inflict  great  bodily  harm,  and  the  object  of  his  attack  (if  there  was 
such  attack)  upon  the  house  was  to  get  access  to  the  inmate  occupying 
the  same,  for  such  purpose,  the  same  means  might  lawfully  be  used  to 
prevent  him  from  breaking  in  as  might  be  used  to  prevent  him  from 
making  the  harmful  assault  upon  the  person,  in  case  the  parties  were 


luJU. 


736  EEEDER    V.    PUEDY.  [CHAP.  V. 

met  face  to  face  in  any  other  place.  In  either  case  the  point  of  justi- 
fication is  that  such  use  of  fatal  means  was  necessary  in  order  to  the 
rightful,  effectual  protection  of  the  respondent,  or  his  family,  from  the 
threatened  or  impending  peril. 

We  have  been  led  to  this  discussion  and  exposition  of  the  law  as  to 
the  defence  of  the  dwelling-house,  on  account  of  the  somewhat  frag- 
mentary and  disjointed  condition  in  which  it  is  done  up  in  the  books 
and  cases  of  criminal  law,  and  for  the  purpose  of  rendering  as  explicit 
as  we  are  able  the  views  of  this  court  on  that  subject,  as  it  has  been 
brought  into  question  and  debate  in  the  case  in  hand.  In  this  exposi- 
tion, and  in  the  views  embodied  in  this  opinion,  all  the  members  of  the 
court  concur. 

The  other  subjects  involved  in  grounds  and  points  of  defence,  as 
shown  by  the  bill  of  exceptions,  and  upon  which  the  court  gave  instruc- 
tions to  the  jurj'.  do  not  seem  to  require  discussion. 

The  verdict  is  set  aside,  and  new  trial  granted. 


REEDER  V,  PURDY. 
Supreme  Court  of  Illinois,  1866. 

[Reported  41  III.  279.] 

Lawrence,  J.  These  two  cases,  although  separately  tried,  depend 
upon  the  same  facts  and  present  similar  questions,  and  it  will  be  more 
convenient  to  dispose  of  both  in  one  opinion. 

In  October,  1862,  Reeder,  claiming  to  be  the  owner  of  a  house  occu- 
pied by  Purdy  and  his  wife,  entered  it,  accompanied  by  the  other 
appellants,  for  the  purpose  of  taking  possession.  Purdy  was  not  at 
home.  Mrs.  Purdy  refused  to  leave,  w^hereupon  Reeder  commenced 
putting  the  furniture  out  of  doors.  She  resisted  this,  and  he  seized  her 
and  held  her  by  the  wrists,  while  Baker,  one  of  the  co-defendants,  con- 
tinued to  remove  the  furniture.  This  was  somewhat  damaged,  and 
some  slight  injury  was  done  to  the  wTists  of  Mrs.  Purdy  by  the  force 
applied  in  holding  her.  The  appellants  finally  abandoned  their  attempt 
to  take  possession  and  withdrew. 

Two  actions  of  trespass  have  been  brought,  one  by  Purdy  alone,  and 
one  by  Purdy  and  wife  jointly.  The  declaration  in  the  suit  brought  by 
Purdy  contains  three  counts,  the  first  being  for  the  assault  upon  his 
wnfe,  the  second  for  the  injury  to  the  personal  property,  and  the  third 
for  breaking  his  close  and  carrying  off  his  furniture.  The  declaration 
in  the  suit  of  Purdy  and  wife  contains  two  counts,  both  of  which  are 
for  the  assault  upon  the  wife.  There  were  pleas  of  not  guilty,  and  an 
agreement  that  all  defenses  might  be  made  under  them.     A  verdict 


SECT.  III.]  EEEDER   V.   PURDY.  737 

for  the  plaintiff  of  S450  in  one  case,  and  S500  in  the  other,  was  returned 
by  the  jury,  and  a  judgment  was  rendered  upon  it,  from  which  the  de- 
fendants appealed. 

It  is  insisted  by  the  appellants  that  Reeder,  being  the  owner  of  the 
premises,  had  a  right  to  enter,  and  to  use  such  force  as  might  be  neces- 
sary to  overcome  any  resistance,  and  that  he  cannot  be  made  liable  as  a 
trespasser,  although  it  is  admitted  he  might  have  been  compelled  to 
restore  to  Purdy,  through  an  action  of  forcible  entry  and  detainer,  the 
possession  thus  forcibly  taken.  The  court  below  instructed  otherwise, 
and  this  ruling  of  the  court  is  assigned  for  error. 

We  should  not  consider  the  question  one  of  much  difficulty,  were  it 
not  for  the  contradictory  decisions  in  regard  to  it,  and  we  must  admit 
that  the  current  of  authorities,  up  to  a  comparatively  recent  period, 
is  adverse  to  what  we  are  con\-inced  must  be  declared  to  be  the  law  of 
the  State.  But  the  rule  cannot  be  said  to  have  been  firmly  or  authori- 
tatively settled  even  in  England,  for  Erskine,  J.,  observes  in  Newton  v. 
Harland,  1  Man.  &  Gr.  644  (39  E.  C.  L.  581),  that  "it  was  remarkable 
a  question  so  likely  to  arise,  should  never  have  been  directly  brought 
before  any  court  in  banc  until  that  case."  This  was  in  the  year  1840, 
and  all  the  cases  prior  to  that  time,  in  which  it  was  held  that  the  owner 
in  fee  could  enter  with  a  strong  hand,  without  rendering  himself  lial)le 
to  an  action  of  trespass,  seem  to  have  been  merely  at  nisi  jmus,  like 
the  oft-cjuoted  case  of  Taunton  v.  Costar,  7  T.  R.  431.  Still  this  was 
the  general  language  of  the  books.  But  the  point  had  never  received 
such  an  adjudication  as  to  pass  into  established  and  incontrovertible 
law,  and  a  contrary  rule  was  held  by  Lord  Lyndhurst  in  Hilary  v.  Gay, 
6  C.  &  P.  &  284  (25  E.  C.  L.  398).  ^But  in  Newton  v.  Harland,  already 
referred  to,  the  Court  of  Common  Pleas  gave  the  question  mature  con- 
sideration, and  finally  held,  after  two  arguments,  that  a  landlord  who 
should  enter  and  expel  by  force  a  tenant  holding  over  after  expiration  of 
his  term,  would  render  himself  liable  to  an  action  for  damages.  But 
the  later  case  of  Meriton  v.  Combs,  67  E.  C.  L.  788,  seems  to  recognize 
the  opposite  rule,  and  we  must,  therefore,  regard  a  question  wliich  one 
would  expect  to  find  among  the  most  firmly  settled  in  the  law  as  still 
among  the  controverted  points  of  Westminster  Hall. 

In  our  own  country  there  is  the  same  conflict  of  authorities.  In  New 
York  it  has  been  uniformly  held,  that,  under  a  plea  of  libervm  tene- 
mentum,  the  landlord,  who  has  only  used  such  force  as  might  be  neces- 
sary to  expel  a  tenant  holding  over,  would  be  protected  against  an 
action  for  damages.  Hyatt  v.  Wood,  4  Johns.  150,  and  Ives  r.  Ives,  13 
Id.  235.  In  Jackson  v.  Farmer,  9  Wend.  201,  the  court,  while  recogniz- 
ing the  rule  as  law,  characterize  it  as  "  harsh,  and  tending  to  the  public 
disturbance  and  indi\ndual  conflict."  Kent,  in  his  Commentaries, 
states  the  principle  in  the  same  manner,  but  in  the  later  editions  of  the 
work,  reference  is  made  by  the  learned  editor,  in  a  note,  to  the  case  of 
Newton  V.  Harland,  above  quoted,  as  laying  down  "  the  most  sound  and 


738  KEEDER    V.   PUKDY.  [CHAP.  V. 

salutary  doctrine."  In  Tribble  v.  Trance,  7  J.  J.  Marsh.  598,  the  court 
held,  that,  notwithstanding  the  Kentucky  statute  of  forcible  entry  and 
detainer,  the  owner  of  the  fee,  having  a  right  of  entry,  may  use  such 
force  as  may  be  necessary  to  overcome  resistance,  and  protect  himself 
against  an  action  of  trespass,  under  a  plea  of  liberum  tcnementum.  On 
the  other  hand,  the  Supreme  Court  of  Massachusetts  has  held,  that, 
although  trespass  quare  clausuvi  may  not  lie,  yet,  in  an  action  of  tres- 
pass for  assault  and  battery,  the  landlord  must  respond  in  damages, 
if  he  has  used  force  to  dispossess  a  tenant  holding  over.  The  court  say 
"  he  may  make  use  of  force  to  defend  his  lawful  possession,  but  being 
dispossessed,  he  has  no  right  to  recover  possession  by  force,  and  by  a 
breach  of  the  peace."  Sampson  v.  Henry,  11  Pick.  379.  See  also  EUis 
V.  Page,  1  id.  43;  Sampson  v.  Henry,  13  id.  36;  Meader  v.  Stone, 
7  Mete.  147,  and  Moore  v.  Boyd,  24  Maine,  242.  But  by  far  the  most 
able  and  exhaustive  discussion  that  this  question  has  received,  was  in 
the  case  of  Dustin  v.  Cowdry,  23  Vt.  635,  in  which  Mr.  Justice  Red- 
field,  delivering  the  opinion  of  the  court,  shows,  by  a  train  of  reasoning 
which  compels  conviction,  that,  in  cases  of  this  character,  the  action 
of  trespass  will  lie.  And  he  also  says:  "whether  the  action  should 
be  trespass  quare  clausum,  or  assault  and  battery,  is  immaterial,  as 
under  this  declaration,  if  the  defendant  had  pleaded  soil  and  freehold, 
as  some  of  the  cases  hold,  the  plaintiff  might  have  new  assigned  the 
trespass  to  the  person  of  the  plaintiff,  and  a  jury,  under  proper  instruc- 
tions, would  have  given  much  the  same  damages,  and  upon  the  same 
evidence,  in  whatever  form  the  declaration  is  drawn."  The  case  of 
Massey  v.  Scott,  32  Vt.,  cited  as  inconsistent  with  this  case,  does  not  in 
fact  conflict  wath  it.  It  only  holds,  that  trespass  quare  clausum,  will 
not  lie  in  behalf  of  a  tenant  for  an  entry  not  within  the  statute  of 
forcible  entry  and  detainer. 

In  this  conflict  of  authorities  we  must  adopt  that  rule  which,  in  our 
judgment,  rests  upon  the  sounder  reason.  We  cannot  hesitate,  and 
were  it  not  for  the  adverse  decision  of  courts,  which  all  lawyers  regard 
with  profound  respect,  we  should  not  deem  the  question  obscured  by 
a  reasonable  doubt.  The  reasoning  upon  which  we  rest  our  conclu- 
sion lies  in  the  briefest  compass,  and  is  hardly  more  than  a  simple 
syllogism.  The  statute  of  forcible  entry  and  detainer,  not  in  terms,  but 
by  necessary  construction,  forbids  a  forcible  entry,  even  by  the  owner, 
upon  the  actual  possession  of  another.  Such  entry  is,  therefore,  unlawful. 
If  unlawful  it  is  a  trespass,  and  an  action  for  the  trespass  must  neces- 
sarily lie.  It  is  urged  that  the  only  remedy  is  that  given  by  the  statute — 
an  action  for  the  recovery  of  the  possession.  But  the  law  could  not 
expel  him  who  has  entered  if  his  entry  was  a  la^^'ful  entry,  and  if  not 
lawful  all  the  consequences  of  an  unlawful  act  must  attach  to  it.  The 
law  is  not  so  far  beneath  the  dignity  of  a  scientific  and  harmonious 
system  that  its  tribunals  must  hold  in  one  form  of  action  a  particular 
act  to  be  so  illegal  that  immediate  restitution  must  be  made  at  the 


SECT.  III.]  REEDER  V.   PURDY.  739 

costs  of  the  transgressor,  and  in  another  form  of  action  that  the  same 
act  was  perfectly  legal,  and  only  the  exercise  of  an  acknowledged  right. 
It  is  urged  that  the  owner  of  real  estate  has  a  right  to  enter  upon  and 
enjoy  his  own  property.  Undoubtedly,  if  he  can  do  so  without  a  forci- 
ble disturbance  of  the  possession  of  another;  but  the  peace  and  good 
order  of  society  require  that  he  shall  not  be  permitted  to  enter  against 
the  will  of  the  occupant,  and  hence  the  common  law  right  to  use  all 
necessary  force  has  been  taken  away.  He  may  be  wrongfully  kept  out 
of  possession,  but  he  cannot  be  permitted  to  take  the  law  into  his  own 
hands  and  redress  his  own  wrongs.  The  remedy  must  be  sought  through 
those  peaceful  agencies  which  a  ci\alized  community  provides  for  all 
its  members.  A  contrary  rule  befits  only  that  condition  of  society  in 
which  the  principle  is  recognized  that 

He  may  take  who  has  the  power, 
And  he  may  keep  who  can. 

If  the  right  to  use  force  be  once  admitted,  it  must  necessarily  follow 
as  a  logical  sequence,  that  so  much  may  be  used  as  shall  be  necessary 
to  overcome  resistance,  even  to  the  taking  of  human  life.  The  wisdom 
of  confining  men  to  peaceful  remedies  for  the  recovery  of  a  lost  posses- 
sion is  well  expressed  by  Blackstone,  book  4,  p.  148:  "An  eighth  offense," 
he  says,  "  against  the  public  peace,  is  that  of  a  forcible  entry  and  de- 
tainer, which  is  committed  by  violently  taking  or  keeping  possession  of 
lands  and  tenements  with  menaces,  force  and  arms,  and  without  the 
authority  of  law.  This  was  formerly  allowable  to  every  person  dis- 
seized or  turned  out  of  possession,  unless  his  entry  was  taken  away  or 
barred  by  his  own  neglect  or  other  circumstances,  which  were  explained 
more  at  length  in  a  former  book.  But  this  being  found  very  prejudicial 
to  the  public  peace,  it  was  thought  necessary,  by  several  statutes,  to 
restrain  all  persons  from  the  use  of  such  \iolent  methods,  even  of  doing 
themselves  justice,  and  much  more  if  they  have  no  justice  in  their 
claim.  So  that  the  entry  now  allowed  by  law  is  a  peaceable  one;  that 
forbidden,  is  such  as  is  carried  on  with  force,  violence  and  unusual 
weapons."  In  this  State,  it  has  been  constantly  held  that  any  entry 
is  forcible,  within  the  meaning  of  this  law,  that  is  made  against  the  will 
of  the  occupant. 

We  state,  then,  after  a  full  examination  of  this  subject,  that  in  our 
opinion  the  statutes  of  forcible  entry  and  detainer  should  be  construed 
as  taking  away  the  previous  common  law  right  of  forcible  entry  by 
the  owner,  and  that  such  entry  must  be  therefore  held  illegal  in  all 
forms  of  action. 

There  are,  however,  some  minor  points  upon  which  both  of  these 
judgments  must  be  reversed.^ 

^  The  remainder  of  the  opinion  is  omitted.  — Ed. 


740  SULLIVAN    V.  OLD    COLONY   KAILROAD.  [CHAP,  V. 


SULLIVAN  V.  OLD  COLONY  RAILROAD. 
Supreme  Judicial  Court  of  Massachusetts,  1888. 

[Reported  148  Mass.  119.] 

Morton,  C.  J.  The  plaintiff  was  a  passenger  upon  the  defendant's 
railroad,  having  a  ticket  which  entitled  him  to  be  carried  from  Boston 
to  his  home  in  Randolph.  It  appeared  at  the  trial  that  he  was  drunk 
and  disorderly,  using  indecent  language,  to  the  annoyance  of  the  other 
passengers;  that  he  was  requested  to  be  quiet  and  refused;  and  there- 
upon the  officers  of  the  defendant,  who  were  also  railroad  police  offi- 
cers, not  intending  to  arrest  him,  but  to  remove  him,  so  as  to  protect 
the  other  passengers  from  annoyance,  removed  him  from  the  cars  to 
the  platform  of  the  depot  at  an  intermediate  station,  and  carried  him 
along  the  platform  to  the  baggage  car,  which  was  the  third  car  forward 
of  the  car  in  which  he  had  been  riding,  using  only  reasonable  force; 
and  that  he  rode  in  the  baggage  car  to  Holbrook,  a  station  near  his 
home  in  Randolph,  without  attempting  or  expressing  any  desire  to 
leave  the  train. 

It  is  clear  that,  under  these  circumstances,  it  was  the  right  and  duty 
of  the  defendant's  officers  to  protect  the  other  passengers  by  remov- 
ing the  plaintiff  from  the  car  in  which  he  was  riding.  Vinton  v.  Mid- 
dlesex Railroad,  11  Allen,  304.  They  might  have  left  him  at  the  place 
where  he  was  removed,  and  if,  after  being  removed,  he  had  demanded 
to  be  released,  or  had  refused  to  enter  the  baggage  car,  it  would  pre- 
sent a  different  question;  but  he  did  neither,  and  the  act  of  putting  him 
in  the  baggage  car  was  done  in  kindness  to  him,  for  the  purpose  of 
carrying  him  to  his  home,  which  the  jury  may  well  have  found  to 
have  been  reasonable  and  proper,  and  not  to  have  been  an  assault  or 
imprisonment. 

The  principal  contention  of  the  plaintiff  is,  that  they  had  no  right 
to  remove  him  except  by  arresting  him  under  §  18,  c.  103,  of  the  Pubh'c 
Statutes.  This  statute,  which  pro\ades  that  railroad  police  officers  may 
arrest  a  noisy  or  disorderly  passenger  wathout  a  warrant,  and  remove 
him  to  the  baggage  or  other  suitable  car,  and  confine  him  there  until 
the  train  arrives  at  some  station  where  such  passenger  can  be  placed  in 
charge  of  an  officer,  who  shall  take  him  to  a  place  of  lawful  detention, 
was  intended  to  confer  additional  powers  upon  officers  of  the  railroad 
who  are  appointed  railroad  police  officers,  and  not  to  take  away  the 
common  law  right  of  the  railroad  corporation,  by  its  servants  or 
agents,  to  remove  a  passenger  who  is  noisy  and  disorderly  to  the  an- 
noyance of  the  other  passengers.  Beckwith  v.  Cheshire  Railroad,  143 
Mass.  68. 


SECT.  III.]  YODER   V.   YODER.  741 

In  the  case  at  bar,  the  court  properly  refused  to  instruct  the  jury, 
as  requested  by  the  plaintiff,  that  the  defendant  had  no  legal  right  to 
remove  the  plaintiff  in  the  manner  set  out  in  the  evidence.  And  the  in- 
structions given  were  suflBciently  favorable  to  the  plaintiff. 

Exceptions  overruled. 


HUNT  V.  CASKEY. 
Supreme  Court  of  New  Jersey,  1905. 

[Reported  60  Atl.  Rep.  42.] 

Per  Curiam.  This  is  an  action  for  damages  for  assault  and  battery. 
At  the  time  of  the  occurrence  the  defendant  was  secretary  and  treas- 
urer, and  also  executive  officer,  of  the  Hunt  Penworks,  in  Camden. 
The  plaintiff  had  formerly  been  the  president  of  that  concern,  but  had 
been  removed  from  that  position  for  improper  conduct  which  was  preju- 
dicial to  the  company's  interests.  He  was  on  the  company's  prem- 
ises at  the  time  of  the  assault,  apparently  for  the  purpose  of  surrep- 
titiously acquiring  information  with  relation  to  its  operations.  He  was 
ordered  to  leave  the  premises  by  the  defendant,  and,  upon  his  refusal 
to  leave,  the  assault  was  committed.  The  e\'idence  makes  it  quite 
plain  that  the  plaintiff  was  quite  severely  beaten,  and  that  the  as- 
sault was  without  legal  justification,  the  force  used  being  greatly  in 
excess  of  that  which  was  necessary  to  be  exerted  in  order  to  eject  him 
from  the  premises.  For  this  reason  a  verdict  in  his  favor  was  properly 
rendered. 

The  amount  of  the  recovery  ($3,000),  however,  was,  in  our  judgment, 
excessive.  If  the  plaintiff  will  consent  to  have  the  verdict  reduced  to 
$1,000,  he  may  enter  judgment  for  this  amount;  otherwise  the  rule  to 
show  cause  will  be  made  absolute. 


YODER  V.  YODER. 
Supreme  Court  of  Pennsylvania,  1913. 

[Reported  239  Pa.  12.] 

Potter,  J.  Under  the  charge  of  the  court  in  this  case,  the  verdict 
of  the  jury  must  be  accepted  as  establishing  the  fact  that  the  defend- 
ant did  not  direct  the  arrest  of  the  plaintiff,  but  merely  directed  the 


742  BAILEY   V.    PEOPLE.  [CHAP.  V. 

officers  to  remove  him  from  the  hotel  owned  by  the  defendant,  and  in 
and  about  which  the  plaintiff  had  been  engaged  as  an  employee  of  the 
defendant.  The  record  shows  testimony  clearly  sufficient  to  sustain 
a  finding  by  the  jury  that,  after  defendant  had  repeatedly  demanded  of 
plaintiff  that  he  should  obey  his  orders,  and  had  received  no  satisfac- 
tory reply,  he  ordered  plaintiff  from  the  building,  and  the  latter  refused 
to  go,  Ijefore  the  officers  were  sent  for  and  instructed  to  take  him  out. 
In  this  action  the  defendant  was  within  his  right.  He  was  the  owner 
of  the  hotel,  and  under  the  agreement  with  plaintiff  the  latter  acquired 
no  interest  in  the  property  but  had  only  an  interest  in  the  profits  aris- 
ing from  the  business.  As  owner,  the  defendant  had  the  right  to  order 
plaintiff  from  the  premises,  and  in  case  of  refusal  had  the  right  to  re- 
move him  by  force,  if  necessary.  He  pursued  the  course  which  was  com- 
mended by  this  court  in  Sloan  v.  Schomaker,  136  Pa.  382,  where  it  was 
said  (p.  390),  that  when  the  plaintiffs  were  ordered  from  defendant's 
store,  "  it  was  their  legal  duty  to  go.  In  strict  law  defendant  might 
then  have  used  sufficient  force  to  put  them  out  with  his  own  hands.  In- 
stead of  doing  so,  he  adopted  the  prudent  and  commendable  course 
of  sending  for  an  officer."  The  case  is  no  better  for  the  plaintiff  if  he 
be  regarded  as  being  at  the  time  in  the  serxice  of  the  defendant,  for 
even  then  it  was  his  legal  duty  to  go,  when  ordered  to  leave.  If  the 
order  amounted  to  a  wrongful  discharge,  he  had  his  remedy  by  suit  for 
damages  for  breach  of  the  contract  of  employment,  as  in  Allen  v.  Col- 
liery Engineers  Co.,  196  Pa.  512,  and  Coates  i\  Steel  Co.,  234  Pa.  199. 
The  issue  of  fact  involved  as  to  the  terms  of  the  order  given  by  the  de- 
fendant to  the  officers  was  fully  and  fairly  submitted  to  the  jury  by  the 
trial  judge.  They  have  found  as  a  fact  that  the  defendant  did  not  go 
beyond  ordering  the  officers  to  remove  the  plaintiff  from  the  premises. 
The  assignments  of  error  are  overruled,  and  the  judgment  is  affirmed. 


BAILEY  V.   PEOPLE. 
Supreme  Court  of  Colorado,  1913. 

[Reported  54  Colo.  337.] 

Scott,  J.  Joseph  E.  Bailey,  defendant  in  error,  was  cbn\icted  in 
the  district  court  of  the  city  and  county  of  Denver,  on  the  charge  of  the 
murder  of  Eugene  H.  Smith.  The  verdict  was  that  of  murder  in  the 
first  degree.  The  wife  of  Smith  was  a  sister  of  the  defendant  Bailey. 
The  homicide  occurred  on  the  18th  day  of  July,  1910.  It  appears  that 
because  of  a  quarrel  between  Smith  and  his  wife,  and  of  the  \'iolent 
beating  and  abuse  of  her  by  Smith  on  the  15th  day  of  July,  the  wife 


SECT.  III.]  BAILEY    V.    PEOPLE.  743 

with  her  two  children  left  home  and  took  refuge  with  her  mother  at 
the  house  where  the  defendant  and  his  wife  resided.  This  seems  to  have 
been  but  one  of  many  similar  occurrences. 

At  about  ten  o'clock  on  the  evening  of  the  18th,  Smith  called  over 
the  telephone  demanding  that  he  be  permitted  to  talk  with  his  wife, 
which  was  refused  by  the  mother  who  answered  the  telephone,  where- 
upon Smith  replied  with  vile  and  abusive  language,  which  caused  the 
mother  to  hang  up  the  receiver.  About  fifteen  minutes  after  this,  Mrs. 
Smith's  little  boy,  by  a  former  marriage,  who  was  in  the  yard  for  the 
purpose  of  sleeping  there,  and  who  had  heard  his  grandmother  talk 
over  the  telephone,  came  running  into  the  house  and  shouted  to  his 
mother  that  he,  meaning  Smith,  was  coming.  It  seems  that  all  of  the 
occupants  of  the  house  had  at  this  time  retired,  or  were  in  the  act  of 
retiring.  Upon  hearing  the  boy's  cry,  Mrs.  Smith  ran  into  the  bedroom 
occupied  by  the  defendant  and  his  wife,  and  called  to  him. 

Mrs.  Smith's  testimony  upon  this  point  is  in  substance  as  follows: 

"  I  looked  out  of  the  window,  looked  northward ;  I  was  undressed  to 
go  to  bed;  he  was  under  the  arc  lights.  He  was  almost  running.  He 
was  just  plunging,  just  coming  in  a  jump  like  that  (indicating).  It 
frightened  me  so;  I  could  see  from  his  appearance  that  he  was  in  a 
very  angry,  bad  mood,  and  I  ran  to  my  brother's  bedroom  door  and 
called  to  him  that  there  he  came.  I  said  to  my  brother :  '  Get  up  out 
of  bed,  yes,  there  he  comes,'  and  I  said,  '  For  God's  sake,  don't  let  him 
come  in  here;  if  you  do  he  will  kill  the  whole  family  —  he  will  kill 
mother  and  me.'" 

The  defendant  thereupon  arose  from  his  bed,  secured  a  revolver  and 
called  out  to  Smith  through  the  window,  demanding  that  he  should  not 
come  into  the  yard.  He  then  went  from  his  bedroom  into  a  room  from 
which  a  door  opened  upon  a  porch,  and  upon  which  Smith  was  entering. 
The  defendant  called  to  Smith,  it  appears  four  times,  and  demanded 
that  he  should  not  come  in.  In  reply  to  either  the  first  or  second  re- 
quest Smith  said,  "  I  will  come  in  and  get  the  whole  God  damned  push 
of  you." 

Smith  finally  opened  the  screen  door  as  if  coming  in,  when  the  de- 
fendant said, "  I  tell  you  for  God's  sake  don't  try  to  enter  this  side  porch 
or  the  house;  if  you  do  I  will  shoot  you."  About  this  time  the  defend- 
ant fired  the  shot  that  resulted  in  the  death  of  Smith.  The  defendant 
was  crippled  in  his  right  hand  from  an  injury  recently  sustained,  and 
was  compelled  to  use  the  revolver  with  his  left  hand.  Smith  was  a  very 
large  and  powerful  man,  much  larger  than  the  defendant. 

It  appears  that  earlier  in  the  day  R.  L.  McDonald,  a  brother-in-law, 
at  the  request  of  Mrs.  Smith,  went  to  Smith  to  see  if  an  adjustment  of 
their  trouble  could  not  be  had,  and  at  which  time  Smith  said,  "Well, 
if  she  will  come  back  and  live  with  me  and  do  just  as  I  say,  I  will  live 
with  her,  and  if  she  won't,  God  damn  her,  I  will  kill  her." 

A  witness  named  Tyler,  who  was  at  the  time  living  at  the  house  of 


744  BAILEY   V.    PEOPLE.  [CHAP.  V. 

the  Smiths',  also  testified  that,  "On  the  morning  of  the  shooting, 
Smith  showed  me  a  gun  and  said,  '  It  was  a  God  damn  good  thing  you 
got  me  drunk  hist  night,  or  I  would  have  gone  down  and  cleaned  out  the 
whole  God  damn  push.'  Smith  came  home  on  the  morning  of  the  18th 
of  July  (the  day  of  the  shooting)  about  two  o'clock.  He  had  been 
drinking.  He  came  into  my  room  and  raised  a  fuss  with  me;  struck 
me  and  used  —  (the  witness  repyeats  \'ile  language  of  deceased  towards 
him).  I  had  a  thirty-eight  revolver  under  my  pillow;  I  drawed  the 
gun  on  him  and  stood  back  on  the  opposite  side  of  the  bed  until  I 
could  get  down  the  stairway,  and  when  I  got  down  the  stairway,  I  got 
out  and  stayed  out  the  rest  of  the  night.  Mrs.  Smith  wasn't  there; 
just  I  and  Smith." 

There  are  many  assignments  of  error,  but  in  as  much  as  the  case  must 
be  reversed  by  reason  of  certain  prejudicial  instructions  given,  it  will 
not  be  necessary  to  consider  other  assignments. 

The  court,  over  the  objection  of  the  defendant,  gave  instructions 
Nos.  10  and  21,  which  are  so  clearly  erroneous  and  prejudicial  to  the 
rights  of  the  defendant,  and  are  so  closely  connected  in  their  subject 
matter  as  to  make  it  convenient  to  consider  them  together.  These  in 
full  are  as  follows: 

"  No.  10.  That  if  you  believe  from  the  evidence,  that  the  deceased, 
Eugene  H.  Smith,  attempted  to  enter  the  house  of  Joseph  E.  Bailey  or 
his  mother,  wherein  he  resided,  and  that  at  the  time  he  attempted  to 
enter  the  same  he  feloniously  intended  to  assault  or  kill  any  of  the 
inmates  thereof,  then  you  are  instructed  that  the  doctrine  that  every 
man's  house  is  his  own  castle,  would  apply,  and  the  defendant  Joseph  E. 
Bailey  is  not  required  under  the  law  to  retreat  from  the  position  or  stand 
which  he  had  taken ;  but  upon  the  other  hand,  if  you  believe  that  the 
said  Smith  attempted  to  enter  the  said  house  for  the  purpose  of  con- 
versing with  and  inducing  his  wife  to  leave  the  said  house,  or  for  the 
purpose  of  using  physical  force,  in  endeavoring  to  do  so,  and  had  no 
intention  of  injuring  or  attempting  to  injure  any  of  the  inmates  of  the 
said  house  further  than  to  exercise  a  reasonable  super\Tision  and  con- 
trol over  his  wife  and  her  conduct,  then  you  are  instructed  that  there 
is  no  self-defense  in  this  case,  and  no  justifiable  killing,  and  the  said 
Joseph  Bailey's  killing  of  the  deceased  was  unlawful,  unless  you  believe 
from  the  evidence,  that  the  circumstances  attending  the  entry  into  the 
house  was  of  such  a  character  as  would  lead  a  reasonable  man  under  like 
circumstances  to  believe  that  he  or  the  inmates  of  the  said  house  were 
about  to  receive  great  bodily  injury." 

"No.  21.  The  court  instructs  the  jury:  That  the  deceased,  Eugene 
H.  Smith,  as  the  husband  of  the  sister  of  the  defendant,  Joseph  E. 
Bailey,  had  a  right  to  exercise  such  reasonaV)le  control  over  her  as  was 
necessary  to  conduce  to  the  proper  establishment  and  maintenance  of 
his  household  as  the  head  of  a  family;  and  as  such  husband  had  a 
right  to  enter,  in  a  lawful  manner,  the  house  or  houses  of  any  person 


SECT.  III.]  BAILEY   V.   PEOPLE.  745 

whomsoever,  for  the  purpose  of  talking  with  and  procuring  his  said 
wife  to  leave  the  said  house,  if  he  so  desired,  and  had  a  right  to  use  such 
reasonable  force  and  persuasion  as  was  necessary  to  induce  her  to 
leave  the  house  of  her  mother  and  come  back  to  her  home  with  him; 
and  no  person,  not  even  her  brother,  Joseph  E.  Bailey,  had  a  right  to 
interfere  with  him  in  the  exercise  of  such  reasonable  force  or  persua- 
sion ;  and  if  you  believe  from  the  evidence,  beyond  a  reasonable  doubt, 
that  the  deceased,  Eugene  H.  Smith,  left  his  home  on  the  evening  of 
July  18th,  and  after  telephoning  to  the  house  of  Mrs.  Bailey,  went 
there  for  the  purpose  of  seeing  his  wife  and  talking  with  her  and  en- 
deavoring to  persuade  and  induce  her  to  leave  the  house  of  the  said  Mrs. 
Bailey,  her  mother,  or  to  talk  over  their  family  affairs  and  difficulties, 
and  that  he  had  no  intention  to  inflict  bodily  harm  or  injury  upon  the 
persons  in  said  house,  then  you  are  instructed  that  there  is  no  self- 
defense  in  this  case  and  no  justification  for  the  killing  of  the  said 
Eugene  H.  Smith  by  the  said  Joseph  E.  Bailey." 

These  instructions  not  only  announce  such  palpable  misstatements 
of  the  law  as  to  prejudice  the  rights  of  the  defendant,  but  go  to  the 
extent  of  proclaiming  a  doctrine  concerning  the  relation  of  husband 
and  wife  as  to  appear  nothing  less  than  monstrous  at  this  period  of  our 
civilization. 

The  jury  are  here  told  that  in  order  that  the  doctrine  of  self-defense 
may  apply,  they  must  believe  from  the  evidence  that  Smith  attempted 
to  enter  the  house  of  defendant,  and  also  that  at  that  time  he  feloni- 
ously intended  to  assault  or  kill  any  of  the  inmates.  This  is  not  the  law. 
It  is  not  the  state  of  the  mind  of  the  defendant  alone  which  the  jury  are 
to  consider,  but  of  the  deceased  as  well.  That  is  to  say,  what  the  de- 
fendant believed,  or  what  under  all  the  circumstances  he  might  have 
reasonable  cause  to  believe  to  be  the  intention  of  the  defendant. 

These  instructions  are  the  equivalent  of  a  denial  of  the  very  right  of 
self-defense  as  defined  and  provided  by  our  statutes.  Sec.  1632,  Re- 
vised Statutes,  1908,  provides: 

"Justifiable  homicide  is  the  kiUing  of  a  human  being  in  necessary 
self-defense  or  in  the  defense  of  habitation,  property  or  person  against 
one  who  manifestly  intends  or  endeavors  by  xaolence  or  surprise  to 
commit  a  known  felony,  such  as  murder,  rape,  robbery,  burglary  and 
the  like,  upon  either  person  or  property,  or  against  any  person  or  per- 
sons who  manifestly  intend  and  endeavor  in  a  violent,  riotous  or  tumul- 
tuous manner  to  enter  the  habitation  of  another  for  the  purpose  of 
assaulting  or  offering  personal  violence  to  any  person,  dwelling  or  being 
therein." 

The  evidence  clearly  justified  the  submission  to  the  jury  of  the  ques- 
tion as  to  whether  or  not  the  deceased  was  a  person  who  manifestly 
intended  and  endeavored  in  a  violent,  riotous,  or  tumultuous  manner 
to  enter  the  habitation  of  the  defendant  for  the  purpose  of  assaulting 
or  offering  personal  violence  to  any  person  dwelling  or  being  therein. 


746  BAILEY   V.    PEOPLE.  [CHAP.  V. 

Instruction  No.  21,  without  qualification,  declares  in  substance  that 
a  husband  without  warrant  of  authority,  and  over  the  protest  of  the 
occupant,  has  a  right  to  enter  the  house  or  houses  of  any  person  whom- 
soever, for  the  purpose  of  talking  with,  and  procuring  his  wife,  and 
against  her  will,  to  leave  such  house  if  he  so  desires. 

This  is  not  now  and  never  was  the  law  in  this  country.  It  is  a 
repudiation  of  every  reasonable  conception  of  the  law  of  domicile  and 
the  right  of  habitation.  Neither  a  husband  nor  any  other  person 
has  such  right.  It  strikes  at  the  very  foundation  and  sanctity  of  home 
life.  It  gives  license  to  every  drunken  vagabond,  or  other  e\al  person, 
to  invade  the  privacy  of  every  man's  home.  It  M^ould  destroy  the 
moral,  constitutional,  statutory,  and  common  law  right  of  defense  of 
habitation. 

It  is  true  the  instruction  declares  the  entrance  must  be  in  a  lawful 
manner.  But  there  can  be  no  such  thing  as  lawful  entrance  under  such 
circumstances. 

But  the  part  of  the  paragraph  of  the  instruction  following  is  even 
more  shocking.  Here  the  jury  are  told  that  a  husband  may  over  the 
protest  of  the  occupant  of  the  house,  and  over  the  protest  of  the  wife 
of  the  husband  so  entering,  not  only  enter  any  man's  house,  but  has  a 
right  also  to  use  such  reasonable  force  and  persuasion  as  may  be  neces- 
sary to  cause  the  wife  to  leave  the  house  of  his  mother  and  come  back 
to  his  home  with  him,  and  that  no  person,  not  even  her  brother,  has  a 
right  to  interfere  with  him  in  the  exercise  of  such  reasonable  force  or 
persuasion. 

The  use  of  the  word  "force"  in  connection  with  the  word  persuasion 
can  refer  to  physical  force  only,  and  the  extent  of  this  force  is  thus 
limited  only  by  the  necessity  of  the  case,  in  order  to  so  secure  the  pos- 
session, control,  and  abduction  of  the  person  of  the  wife,  and  all  this  as 
against  her  will,  her  fear,  and  even  the  apparent  danger  of  her  life. 

In  other  words,  if  this  be  the  law,  whatever  may  be  the  circum- 
stances, the  defendant  was  absolutely  without  right  to  defend  his  home 
and  his  near  relatives  from  the  threatened  assaults  and  brutality  of  an 
infuriated  and  drunken  husband,  at  whose  will  the  home  is  to  be  made 
the  place  of  riot  and  the  occupants  to  suffer  mental  distress,  probable 
assault,  and  as  indicated  by  the  testimony  in  this  case,  possible  murder. 

Such  is  not  and  can  never  be  the  law  in  a  civilized  country. 

This  assertion  of  the  right  of  a  husband  to  control  the  acts  and  wall 
of  his  wife  by  physical  force  cannot  be  tolerated. 

The  prejudicial  effect  on  the  defendant's  rights  by  these  instruc- 
tions is  too  palpable  to  require  comment. 

Counsel  for  defendant  in  their  very  excellent  brief  have  cited  many 
cases  bearing  upon  this  question.  Among  these  is  that  of  the  English 
case  of  Queen  v.  Jackson,  Div.  1,  1891.  This  was  a  case  where  a  husband 
undertook  to  restrain  the  liberty  of  his  wife  by  forcibly  keeping  her  in  his 
own  home  after  she  had  declined  to  further  live  with  him.    The  decision 


SECT.  III.]  BAILEY    V.    PEOPLE.  747 

of  the  court  in  that  case  may  be  epitomized  in  the  statement  of  Mr. 
Helmer  Collins,  Q.  C,  as  follows: 

"  The  contention  of  the  husband  would  result  in  the  re-introduction 
into  society  of  private  war;  for  the  male  relations  of  a  wife  would 
naturally,  if  at  hand,  be  likely  to  resist  her  capture  by  the  husband.  The 
contention  for  the  husband  involves  wholly  untenable  propositions. 
First,  it  involves  that  the  husband  may  take  possession  of  the  wife's 
person  by  force,  though  no  process  of  law  could  give  him  such  posses- 
sion of  her.  There  never  was  any  process  of  law  for  seizing  and  hand- 
ing over  the  wife  to  the  husband."  .  .  . 

"  A  husband  has  no  such  right  at  common  law  to  the  custody  of  his 
wife.  It  is  inconceivable  that  the  husband  should  be  entitled  to  do  by 
force  for  himself  that  which  the  law  cannot  enforce  in  his  favor." 

In  Fulgham  v.  State,  46  Ala.  143,  the  rule  is  stated  as  follows : 

"  But  in  person,  the  wife  is  entitled  to  the  same  protection  of  the  law 
that  the  husband  can  invoke  for  himself.  She  is  a  citizen  of  the  State, 
and  is  entitled,  in  person  and  in  property,  to  the  fullest  protection  of 
the  laws.  Her  sex  does  not  degrade  her  below  the  rank  of  the  highest 
in  the  Commonwealth." 

In  State  v.  Oliver,  70  N.  C.  44,  it  is  said: 

"  We  may  assume  that  the  old  doctrine  that  a  husband  had  a  right  to 
whip  his  wife,  provided  he  used  a  switch  no  larger  than  his  thumb,  is 
not  law  in  North  Carolina.  Indeed,  the  courts  have  advanced  from 
that  barbarism  until  they  have  reached  the  position  that  the  husband 
has  no  right  to  chastise  his  wife  under  any  circumstances." 

Again,  in  Buckingham  v.  Buckingham,  81  Mich.  89,  the  same  doc- 
trine is  declared: 

"There  would  seem  to  be  no  legal  principle  which  would  prevent 
her  from  voluntarily  deserting  her  husband,  and  abandoning  her 
homestead.  She  is  in  no  sense  the  slave  of  her  husband,  and  is  so  far 
the  master  of  her  own  will  that  she  has  liberty  to  remain  with  her  hus- 
band, or  go  from  him,  as  she  pleases;  and  he  has  no  legal  remedy  to 
compel  her  to  return." 

In  State  v.  Connolly,  3  Ore.  69,  the  principle  is  stated  as  follows : 

"If  Mrs.  Hill,  the  wife  of  the  deceased,  ha\ang  reasonable  ground 
to  apprehend  personal  violence  at  the  hands  of  her  husband,  sought  a 
temporary  refuge  in  the  defendant's  house,  and  the  deceased,  being 
forbidden,  sought  to  enter,  then  either  the  defendant  or  his  wife  had  a 
right  to  use  all  necessary  force  to  prevent  him  from  entering." 

And  in  Commonwealth  v.  McAfee,  108  Mass.  459,  we  find  a  very  clear 
and  comprehensive  statement  of  the  rule: 

"  It  may  be  stated,  however,  that  under  modern  legislation,  as  well 
as  judicial  opinions,  that  fiction  of  legal  unity  by  which  the  separate 
existence  of  the  wife  in  a  legal  sense  is  denied  is  exploded.  Her  person 
is  as  sacred  as  that  of  the  husband,  and  the  protection  afforded  by  law 
to  the  one  should  not  be  denied  to  the  other.    In  fact,  courts  of  equity 


748  COMMONWEALTH   V.   DOUGHERTY.  [CHAP.  V. 

have  always  recognized  the  separate  existence  of  the  wife  in  reference 
to  her  sole  and  separate  estate,  and  to  say  that  a  court  of  law  will 
recognize  in  the  husband  the  power  to  compel  his  wife  to  obey  his 
wishes,  by  force  if  necessary,  is  a  relic  of  barbarism  that  has  no  place 
in  an  enlightened  civihzation."  ^  .  .    • 

The  judgment  is  reversed,  and  the  case  remanded} 


COMMONWEALTH  v.  DOUGHERTY. 
Supreme  Judicial  Court  of  Massachusetts,  1871. 

[Reported  107  Mass.  243.] 

Two  complaints  to  the  district  court  of  central  Berkshire,  for  as- 
sault and  battery  of  John  McCarthy;  the  first  offense  averred  to 
have  been  committed  in  a  church  building,  and  the  second  in  a  burial 
ground.  The  defendant  was  found  guilty  on  both,  and  appealed. 
At  the  trial  of  the  first  complaint,  in  the  Superior  Court,  on  the  appeal, 
before  Reed,  J.,  there  was  evidence  of  these  facts: 

The  defendant  was  sexton  of  the  Roman  Catholic  church  building 
in  Pittsfield,  and  in  that  capacity  had  charge  of  the  building  and  of  the 
conduct  of  funerals  in  it.  He  was  also  an  undertaker.  It  was  the  rule 
concerning  funerals  in  the  building,  that  the  priest  or  the  sexton  should 
be  informed  of  the  death,  and  of  the  desire  of  the  friends  of  the  deceased 
that  funeral  services  should  be  performed  there;  upon  receiving  such 
notice,  either  the  priest  or  the  sexton  would  fix  a  time  for  such  services, 
to  avoid  interference  with  the  other  exercises  of  the  church;  and  it  was 
the  sexton's  duty  to  take  charge  of  the  funeral  procession,  when  it 
reached  the  door  of  the  building,  and  to  precede  the  bearers  of  the 
corpse  up  the  aisle,  superintend  the  deposit  of  the  bier  in  the  place 
provided  for  it,  seat  the  mourners,  and  then,  if  the  priest  was  not 
present,  call  him. 

On  Sunday,  May  17,  1870,  at  the  close  of  a  religious  service  in  the 
building,  and  after  the  congregation  had  been  dismissed,  but  while 
some  of  them  were  lingering  at  prayer  within  the  building,  John  Mc- 
Carthy, an  undertaker  who  had  recently  set  up  in  business  in 
Pittsfield,  came  to  the  building  in  charge  of  a  funeral  of  which  no 
previous  notice  had  been  given,  and  attempted  to  enter  and  perform 
the  duties  of  the  sexton  in  regard  to  it.  Upon  McCarthy's  arrival  at 
the  vestibule,  the  defendant,  who  was  seated  at  a  desk  within  the  door, 
forbade  him  to  proceed  with  the  funeral  in  the  building.     But  Mc- 

^  Part  of  the  opinion  is  omitted.  —  Ed. 

2  See  State  r.  Sinclair,  250  Mo.  278,  157  S.  W.  339.  —  Ed. 


SECT.  III.]  COMMONWEALTH   V.    DOUGHERTY.  749 

Carthy  persisted  in  his  attempt,  marched  up  the  aisle  with  his  proces- 
sion, and  was  directing  one  Tim  Powers  where  to  put  the  bier,  when 
the  defendant  "came  down  the  aisle,  and  told  him  to  go  out  of  the 
church,  and  forcibly  removed  him,  but  without  more  force  than  was 
necessary  to  eject  him  from  the  building." 

Upon  these  facts  the  defendant  requested  a  ruling  that  he  was  en- 
titled to  an  acquittal,  which  the  judge  refused,  whereupon  by  consent 
of  the  defendant  a  verdict  of  guilty  was  returned  and  the  case  reported 
for  the  revision  of  this  court. 

Morton,  J.  It  appeared  at  the  trial,  that  the  defendant  was  the 
sexton  and  person  in  charge  of  the  church,  and  that  it  was  his  duty  to 
take  charge  of  and  conduct  funerals  at  the  church.  The  complainant 
McCarthy  had  no  right  to  insist  upon  conducting  a  funeral  there  in 
violation  of  the  rules  prescribed  by  the  authorities  of  the  church  to 
maintain  order  and  prevent  interference  with  other  religious  exercises. 
The  facts  show  that  he  did  so,  and  that,  upon  being  requested  to 
desist  and  leave  the  church,  he  refused,  and  persisted  in  his  unauthor- 
ized intrusion.  We  think  the  defendant,  being  in  charge  of  the  church, 
upon  such  refusal,  had  a  right  to  remove  him;  and  as  the  facts  find  that 
in  so  doing  he  used  no  more  force  than  was  necessary,  he  was  not  guilty 
of  an  assault  and  battery.  The  jury  should  have  been  instructed,  as 
requested  by  the  defendant,  that  upon  the  facts  shown  at  the  trial  he 
was  entitled  to  an  acquittal. 

Verdict  set  aside. 

At  the  trial  of  the  second  complaint,  in  the  Superior  Court,  also 
before  Reed,  J.,  the  following  facts  appeared: 

The  fee  of  the  Roman  Catholic  burial  ground  in  Pittsfield  was  in 
Edward  H.  Purcell,  the  pastor  of  the  church  of  St.  Joseph  in  Pitts- 
field;  and  he  had  established  certain  rules  for  its  use,  the  tenth  and 
eleventh  of  which  were  as  follows: 

"Tenth.  The  conduct  and  charge  of  all  funeral  processions  and 
gatherings  of  persons  in  and  upon  the  grounds  of  said  cemetery  shall 
be  in  the  person  appointed  for  that  purpose  by  the  pastor  of  the  church 
of  St.  Joseph  in  Pittsfield,  and  strict  obedience  to  his  requirements  is 
demanded  and  will  be  enforced. 

"Eleventh.  Undertakers,  and  all  other  persons  ha\nng  charge  of  a 
funeral  or  burial,  before  entering  upon  the  cemetery  grounds,  will 
notify  the  person  in  charge  of  the  cemetery  of  the  time  such  burial 
will  occur.  In  the  cemetery  all  arrangements  therefor  will  be  made, 
and  the  charge  of  such  funeral  received  at  the  entrance  of  said  cemetery, 
and  no  undertaker  or  other  person  than  the  pastor  or  his  appointees 
will  he  permitted  to  officiate  in  any  way  or  matter  upon  the  grounds." 

The  defendant  was  the  person  appointed  by  Father  Purcell  under 
the  tenth  rule,  and  had  charge  of  the  burial  ground. 

Licenses  for  lots  were  granted  by  Father  Purcell  in  a  form  certifying 


750  HIGGINS   V.   MINAGHAN.  [CHAP.  V. 

that  the  licensee  was  entitled  to  the  use  of  one  burial  lot  of  specified 
dimensions,  subject  to  the  rules  for  the  use  of  the  burial  ground,  and 
on  condition  that  persons  dying  drunk  or  unbaptized,  or  otherwise  op- 
posed to  the  Catholic  Church  in  the  opinion  of  the  Roman  Catholic 
bishop  of  Boston,  should  not  be  entitled  to  observance  of  the  license. 

At  the  funeral  (described  in  the  first  case)  which  the  undertaker 
McCarthy  was  conducting,  he  "entered  the  burial  ground  with  the 
corpse,  under  this  usual  license,  and  there  conducted  the  funeral  cere- 
monies, and,  as  is  usual  on  such  occasions  with  Roman  Catholics,  gave 
thanks  and  made  prayers  at  the  close."  As  McCarthy  was  rising  from 
his  knees  and  putting  on  his  hat,  the  defendant,  "  coming  up  to  object 
to  his  presence  and  actions  in  conducting  the  funeral  on  the  cemetery 
grounds,  struck  him  upon  the  shoulder,  and  objecting  that  he  was  not 
permitted  to  go  there  as  undertaker  with  a  funeral,  and  that  Father 
Purcell  had  previously  thereto  forbidden  him  to  take  charge  of  a  funeral 
at  the  cemetery,  refused  to  permit  him  to  officiate  thereat  in  the 
cemetery." 

Upon  these  facts  (as  in  the  first  case)  the  defendant  requested,  and 
the  judge  refused,  a  ruling  that  the  defendant  was  entitled  to  an  ac- 
quittal; whereupon  by  consent  of  the  defendant  a  verdict  of  guilty 
was  returned  and  the  case  reported  to  this  court. 

Morton,  J.  We  cannot  say,  as  matter  of  law,  that  the  verdict  of 
the  jury  was  erroneous.  It  appeared  at  the  trial,  that,  after  McCarthy 
-f- 1  .  had  concluded  the  funeral  services,  the  defendant  struck  him  on  the 
'^H^.e/f^;^.  shoulder.  It  does  not  appear  that  this  was  for  the  purpose  of  removing 
him  from  the  cemetery.  If  it  be  admitted  that  the  defendant  had  the 
right  to  remove  McCarthy,  it  does  not  follow  that  this  assault  was 
justifiable.  It  was  for  the  jury  to  decide  whether  the  force  used  by  the 
defendant  was  used  for  the  purpose  of  removing  him,  and  whether  it 
was  reasonable  in  kind  and  degree.  Both  of  these  questions  were 
within  the  province  of  the  jury  to  determine,  and  we  cannot  revise 
their  finding  thereon. 

Judgment  on  the  verdict. 


HIGGINS  V.   MINAGHAN. 
Supreme  Court  of  Wisconsin,  1891. 

[Reported  78  Wis.  602.] 

Cole,  C.  J.^  A  number  of  instructions  were  asked  on  the  part  of 
the  defendant,  some  of  which  were  covered  by  the  general  charge;  and 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  III.]  HIGGINS   V.   MINAGHAN.  751 

some  were  refused  which  should  have  been  given.  The  instructions 
and  charge  are  too  lengthy  to  be  quoted  verbatim,  nor  is  it  necessary, 
to  make  our  remarks  upon  them  intelligible.  The  really  controverted 
question  in  the  case  was  whether,  under  the  circumstances,  the  de- 
fendant was  justified  in  shooting  the  plaintiff  as  he  did.  The  trial 
court,  in  considering  the  question  whether  the  shooting  was  excusable 
or  justifiable,  said: 

"  The  defendant,  as  he  had  a  lawful  right  to  do,  on  the  14th  day  of 
June  married  a  second  wife  and  took  her  to  his  home  to  live.  On  the 
night  of  June  18,  1887,  the  plaintiff  and  others  —  men  and  boys  — 
proceeded  to  the  defendant's  house,  and  engaged  in  what  is  designated 
as  a  charivari,  the  nature  and  character  of  which  is  shown  by  the  evi- 
dence. The  same  thing  was  repeated  on  the  nights  of  the  22d  and 
25th  of  the  same  month.  It  was  continued  on  the  last  night  until  the 
plaintiff  was  shot,  when  the  crowd  dispersed.  What  was  done  on  each 
night  is  for  you  to  ascertain  and  consider.  The  plaintiff  was  present 
on  the  18th  and  25th  of  June,  as  an  actual  participant,  or  aiding  and 
encouraging  the  others,  so  that  he  is  responsible  for  the  acts,  lan- 
guage, and  conduct  of  each  and  every  one  constituting  the  charivari 
party,  the  same  as  if  done  by  himself.  He  knew  what  had  been  done 
on  the  night  of  the  22d,  before  the  commencement  of  the  proceedings 
and  disturbance  on  the  25th.  The  defendant,  at  these  times,  was  in 
the  peaceable  pursuit  of  his  own  business,  at  home  with  his  family,  and 
entitled  to  enjoy  domestic  peace  and  tranquillity,  without  disturbance 
or  molestation  from  the  plaintiff  or  any  one  else.  These  three  gather- 
ings by  the  plaintiff  and  others  were  composed  of  men  and  boys  from 
the  defendant's  neighborhood,  but  whether  he  knew  who  they  were  at 
these  times  is,  of  course,  a  question  for  you  to  determine.  The  chari- 
vari parties  consisting  of  the  crowd  in  front  of  or  upon  the  defendant's 
premises  constituted  an  unlawful  assembly;  and  by  their  transactions, 
conduct,  and  behavior  became  what  is  known  in  the  law  as  a  'riot,' 
tending  to  the  disturbance  of  the  peace  and  the  annoyance,  if  not  the 
terror,  of  the  defendant  and  others  in  the  \'icinity ;  they  were  trespassers 
in  the  highway.  Where  an  unlawful  assembly  and  riot,  like  the  one  in 
question,  offers  and  threatens  violence  to  persons  or  property,  it  may 
and  ought  to  be  repelled  with  suitable  and  necessary  force;  but,  where 
no  violence  is  offered  or  threatened  to  person  or  property,  no  one  is 
justified  in  unnecessarily  or  wantonly  killing  or  wounding  a  person 
engaged  in  a  charivari.  The  law  pro\ades  a  punishment  for  such  un- 
lawful acts.  Persons  thus  engaged  are  not  necessarily  outlaws  beyond 
the  protection  of  the  law,  who  may  be  slain  or  wounded  without 
cause  by  any  person  not  in  any  actual  or  apparent  danger  from  their 
acts.  To  enable  you  to  determine  whether  \'iolence  was  offered,  danger 
to  person  or  property  was  threatened  or  contemplated,  the  numbers  in 
these  unlawful  assemblies,  and  their  acts  and  transactions,  proceed- 
ings, and  conduct  on  the  three  nights  in  question  may  be  considered 


752  HIGGINS   V.   MINAGHAN.  [CHAP.  V. 

on  the  question  of  whether  the  defendant  was  justified  in  doing  what  he 
did,  if  he  shot  the  plaintiff  in  the  leg.  .  .  . 

"  In  case  you  are  satisfied  from  the  e\'idenee  that  the  defendant  shot 
the  plaintiff  in  the  leg,  your  next  duty  will  be  to  determine  whether 
such  shooting  was  excusable  or  justifiable.  Every  one  has  the  right  to 
protect  himself  and  his  family  from  danger  to  life  or  limb,  and  his 
home  from  invasion  by  the  felonious  acts  of  others.  He  may  employ 
suitable  and  appropriate  means  and  methods  to  prevent  or  avoid  the 
threatened  danger.  Before  force  can  be  resorted  to  there  must  be  real 
or  apparent  danger,  and  an  apparent  necessity  of  using  force  to  avoid 
or  prevent  an  injury.  One  instance  is  where  one  person  attempts  a 
battery  of  another,  in  which  case  the  latter  is  not  obliged  to  submit 
until  an  officer  can  be  found  or  a  suit  commenced,  but  he  may  oppose 
violence  to  \-iolence,  and  the  limit  to  this  pri\'ilege  is  only  this:  that 
he  must  not  employ  a  degree  of  for^e  not  called  for  in  self-defense;  he 
must  not  inflict  serious  injuries  in  repelling  slight  injuries,  nor  take 
life,  unless  his  life  or  limb  is  in  danger.  Where  he  exceeds  the  limit  of 
necessary  protection  and  employs  excessive  force,  he  becomes  a  tres- 
passer liimself,  and  his  assailant  may  recover  damages  from  him  for  re- 
pelling the  assault  with  a  violence  not  called  for.  As  mere  words  n'ever 
constitute  an  assault,  neither  will  they  justify  the  employment  of  force 
in  protection  against  them,  however  gross,  obscene,  or  abusive  they 
may  be.  There  are,  probably,  exceptions  to  this  general  statement,  in 
words  grossly  insulting  to  females  —  at  least,  where  one  would  be  ex- 
cused, where  grossly  vulgar  and  insulting  language  was  employed  in  the 
presence  of  his  family,  if  he  were  promptly  to  put  a  stop  to  it  by  force. 
Such  force  as  one  may  employ  in  his  own  defense  he  may  also  employ 
in  the  defense  of  his  wife,  his  child,  or  any  member  of  his  family;  but 
to  revenge  the  wrongs  of  himself  or  his  family  is  no  part  of  his  legal 
right,  and  where  the  danger  is  repelled,  or  there  is  no  real  or  apparent 
danger,  justification  for  the  further  use  of  violence  is  at  an  end.  The 
force  or  means  to  be  employed  in  self-defense  of  person  or  family  must 
be  such  only  as  are  reasonably  necessary  to  repel  or  prevent  the  threat- 
ened injury.  .  .  . 

"  If  the  noise,  disturbance,  and  disorderly  acts  of  the  charivari  party 
so  affected  the  wife  and  children  of  the  defendant  that  he  had  reason- 
able grounds  to  apprehend  that  either  of  them  was  likely  to  die  or  to 
be  seriously  injured  in  body,  mind,  or  health,  if  such  acts  were  contin- 
ued, and  reasonable  cause  to  believe  that  such  injury  might  result, 
then  the  defendant  had  the  right  to  use  the  necessary  force  to  avert 
the  apprehended  danger,  the  same  as  though  an  actual  attack  had  been 
made  on  their  persons;  but  if  the  sole  and  only  danger  to  be  appre- 
hended was  the  injury  to  his  wife  and  children  from  fright  or  terror, 
then  if  the  defendant  with  reasonable  safety  to  himself  could  have 
approached  near  enough  to  have  informed  the  charivari  party  of  this 
fact,  he  should  have  done  so,  and  given  them  an  opportunity  to  desist. 


SECT.  III.]  HIGGINS   V.   MINAGHAN.  753 

before  firing  into  the  crowd;  he  should  have  used  all  reasonable  and 
practicable  efforts  which  he  could  use  without  exposing  himself  to 
danger  to  let  them  know  the  situation  and  danger  to  his  family  from 
their  acts ;  but  if  the  acts  and  conduct  of  the  charivari  party  were  of  such 
a  character  that  it  would  have  been  impracticable  or  dangerous  to  him- 
self or  his  limb  to  have  gone  near  enough  to  have  given  them  this  infor- 
mation, then  he  would  be  excused  from  so  doing.  If  alone,  and,  in  addi- 
tion to  danger  to  his  wife  and  child  from  fright  or  terror,  there  was 
imminent  danger  of  a  felonious  attack  on  his  house  or  on  its  inmates  or 
himself,  no  notice  to  the  charivari  party  of  such  danger  to  his  wife  or 
child  would  be  necessary;  but  it  would  be  for  you  to  find  whether  he 
is  excusable  or  justifiable  in  firing,  at  the  time  and  manner  he  did,  under 
all  the  circumstances  of  the  case.  The  shooting  or  killing  of  another  is 
justifiable  when  committed  by  any  person  in  either  of  the  following 
cases." 

Now,  in  respect  to  this  charge,  we  remark  (1)  that  what  is  said  in  it 
about  justifiable  homicide  was  calculated  to  mislead  the  jury  from  the 
real  issue.  The  defendant  did  not  kill  any  one,  and  there  was  no  occa- 
sion to  define  justifiable  homicide,  for  no  such  question  was  in  the  case. 

(2)  We  do  not  think  the  defendant  is  bound  to  notify  the  chari- 
vari party  that  their  shooting,  noise,  and  tumult  were  causing  terror 
and  fright  to  his  wife  and  children,  and  were  seriously  injuring  them  in 
mind,  body,  and  health.  This  was  the  third  night  these  persons  had 
been  engaged  in  these  unlawful  and  criminal  proceedings.  On  the 
first  night  they  came  the  defendant  had  warned  them  away,  and  directed 
them  to  desist.  The  rioters  themselves  knew,  or  should  have  known, 
that  their  acts  and  conduct  about  the  house,  in  the  night,  were  well 
calculated  to  produce  terror  and  fright,  and  injuriously  affect  the  de- 
fendant's family.  This  was  the  direct,  necessary,  and  almost  inevitable 
consequence  of  their  acts.  If  the  defendant  had  again  requested  them 
to  desist  and  go  away,  had  told  them  they  were  causing  serious  bodily 
harm  to  his  wife  and  children,  his  notice  and  warning  would  probably 
have  been  received  with  derision,  insulting  remarks,  and  vile  abuse, 
as  they  had  been  on  previous  occasions.  So  we  think  it  was  error  to 
charge  that  the  defendant  was  bound  to  inform  the  charivari  party  of 
the  fact  that  their  riotous  conduct  was  endangering  the  life  of  his  Mife 
and  children,  before  taking  effectual  means,  by  shooting  or  otherwise, 
to  drive  them  away.  The  circuit  judge  evidently  held  that  the  de- 
fendant had  no  right  to  fire  into  the  body  of  rioters  without  notice  and 
without  having  commanded  them  to  disperse;  but  upon  the  undis- 
puted facts  of  the  case  the  law  imposed  upon  him  no  such  duty. 

(3)  We  think  the  charge  is  faulty  because  it  did  not  point  out  to  the 
jury  the  essential  difference  between  an  assault  by  one  person  and  by  a 
body  of  rioters.  An  assault  in  the  latter  case  always  inspires  more 
terror  and  is  attended  with  greater  danger  than  in  the  former;  for,  as 
defendant's  counsel  says,  when  a  number  of  men  combine  to  do  an  un- 


754  HIGGINS   V.    MINAGHAN.  [CHAP.  V. 

lawful  act  a  kind  of  emulation  is  excited  which  leads  one  after  another  to 
go  to  greater  and  greater  excesses  and  to  resort  to  more  flagrant  acts, 
so  that  a  person  assaulted  by  a  mob  in  that  way  is  necessarily,  from 
the  nature  of  the  case,  subject  to  greater  terror  and  apprehension  than 
when  the  assault  is  made  by  an  individual,  and  the  assaulted  party 
may  act  with  more  promptness  and  resort  to  more  forcible  means  to 
protect  himself  and  suppress  the  riot  than  in  the  latter  case.  Here  the 
rioters  were  firing  guns,  blowing  horns,  drumming  on  pans,  and  making 
all  kinds  of  hideous  noises  (76  Wis.  301),  and  kept  up  this  tumultuous 
uproar  for  hours,  until  his  wife  and  youngest  daughter  were  nearly 
frightened  to  death.  The  defendant  could  not  tell  when  they  would 
attack  his  dwelling-house,  or  shoot  him,  or  personally  assault  him; 
and  in  the  excitement  and  confusion  the  law  would  justify  or  excuse 
him  in  the  use  of  firearms  for  the  safety  of  himself  and  family,  when 
such  means  might  not  be  resorted  to  in  the  case  of  an  assault  by  an 
individual. 

This  idea,  or  difference  between  an  assault  by  one  and  by  a  large 
number,  is  embraced  in  the  eleventh  and  twelfth  and  some  of  the  other 
instructions  asked  by  the  defendant,  and  the  point  should  have  been 
clearly  and  emphatically  impressed  upon  the  minds  of  the  jury,  for  the 
difference  is  great,  and  common  experience  teaches  that  the  danger  to 
life  and  property  is  immeasurably  greater  in  one  case  than  in  the  other. 
The  trial  court  should  have  charged  in  the  language  of  the  eleventh 
request,  or  in  some  equivalent  language,  that  "  a  riot  is  regarded  in  law, 
always,  as  a  dangerous  occurrence,  because  when  rioters  have  convened 
in  a  tumultuous  and  disorderly  manner,  and  have  actually  begun  to 
accomplish  an  unlawful  act,  to  the  terror  or  disturbance  of  others,  the 
prompting  of  one  rioter  is  contagion  to  another,  and  it  is  impossible  to 
conjecture  or  ascertain  beforehand  to  what  extremities  of  lawlessness  or 
crime  the  excitement  and  confusion  may  lead,  ...  A  private  person, 
who  cannot  otherwise  suppress  them  or  defend  himself  from  them, 
may  justify  or  excuse  the  use  of  firearms  or  other  deadly  weapons,  be- 
cause it  is  both  a  right  and  a  duty  to  protect  one's  self  and  family,  and 
to  aid  in  preser\'ing  the  peace." 

We  see  no  objection  to  the  charge  where  the  jury  were  directed :  "  If 
a  person  is  assaulted  in  such  a  way  as  to  induce  in  him  a  reasonable 
belief  of  danger  of  losing  his  life  or  of  suffering  great  bodily  harm,  he 
will  be  justified  in  defending  himself,  although  the  danger  be  not  real, 
only  apparent.  Such  a  person  will  not  be  held  responsible  civilly  or 
criminally  if  he  acts  in  self-defense,  from  real  and  honest  convictions 
induced  by  reasonable  evidence,  although  he  may  be  mistaken  as  to  the 
extent  of  the  actual  danger.  A  person  need  not  be  in  actual  imminent 
peril  of  his  life  or  of  great  bodily  harm  before  he  may  shoot  his  assail- 
ant; it  is  sufficient  if  in  good  faith  he  has  reasonable  ground  from  the 
facts,  as  they  appear  to  him  at  the  time,  to  apprehend  a  design  to 
commit  a  felony,  or  to  do  some  great  personal  injury,  and  reasonable 


SECT.  III.J  COPE   V.    SHARPE.  755 

cause  for  believing  that  there  is  imminent  danger  of  such  design  being 
accomplished." 

We  do  not  deem  it  necessary  to  comment  further  on  the  charge. 
We  think  the  case  was  not  submitted  to  the  jury  upon  proper  instruc- 
tions, and  that  there  must  be  a  new  trial  for  that  reason. 

By  the  Court.  —  The  judgment  of  the  circuit  court  is  reversed,  and 
a  new  trial  ordered. 


COPE  V.  SHARPE. 
Court  of  Appeal,  1911. 

[Reported  (1912)  1  K.  B.  496.] 

Appeal  of  the  defendant  from  the  decision  of  a  Divisional  Court 
(Phillimore,  Hamilton,  and  Scrutton,  JJ.)  upon  an  appeal  from  the 
county  court  of  Surrey  holden  at  Aldershot,  reported  [1911]  2  K.  B.  837. 

The  action  was  for  trespass.  The  plaintiff,  who  was  the  owner  of 
land,  by  an  agreement  dated  February  1,  1909,  let  the  shooting  rights 
over  the  land  to  one  Chase  for  a  term  of  two  years. 

The  defendant  was  bailiff  and  head  gamekeeper  to  Chase. 

During  April  and  May,  1909,  a  number  of  heath  fires  broke  out  on 
the  land  of  the  plaintiff.  On  April  21,  1909,  a  serious  fire  broke  out  on 
the  south  side  of  a  part  of  the  shooting  known  as  the  Welsh  Drive, 
where  there  was  a  covert  affording  shelter  to  nesting  pheasants.  There 
was  a  conflict  of  e\ndence  as  to  the  direction  of  the  wind. 

Some  fifty  men  were  engaged  in  beating  out  the  fire.  While  they 
were  thus  occupied  the  defendant  came  along  the  Welsh  Drive  and  set 
fire  to  strips  or  patches  of  heather  at  some  considerable  distance  from 
the  main  fire  and  between  it  and  the  W' elsh  Drive.  On  being  asked  why 
he  interfered  he  said  the  men  did  not  know  how  to  deal  with  a  fire. 
Shortly  afterwards  the  men  succeeded  in  extinguishing  the  fire. 

The  plaintiff  brought  an  action  in  the  county  court  of  Hampshire 
holden  at  Basingstoke.  Judgment  was  given  in  that  action  for  the 
plaintiff  for  nominal  damages  and  an  injunction.  The  defendant  ap- 
pealed ;  and  the  Divisional  Court,  being  in  some  doubt  as  to  whether 
the  county  court  judge  had  directed  his  mind  to  the  question  whether 
the  act  of  the  defendant  was  necessary  for  the  protection  of  his  master's 
game,  ordered  a  new  trial  to  be  had  in  the  county  court  of  Surrey 
holden  at  Aldershot:  see  the  report  of  Cope  v.  Sharpe,  [1910]  1  K.  B. 
16S.  It  was  subsequently  ordered  that  the  trial  should  take  place  be- 
fore a  jury:  see  Rex  v.  Surrey  County  Court  Judge,  [1910]  2  K.  B.  410. 


756  COPE   V.    SHARPE.  [CHAP.  V. 

The  second  trial  proved  abortive,  as  the  jury  could  not  agree  upon  a 
verdict.  The  case  was  thereupon  heard  for  the  third  time.  The  county 
court  judge  left  the  following  questions  to  the  jury : 

(1)  Was  the  method  adopted  by  the  defendant  in  fact  necessary  for 
the  protection  of  his  master's  property? 

(2)  If  not,  was  it  reasonably  necessary  in  the  circumstances? 

The  jury  answered  the  first  question  in  the  negative,  and  the  second 
in  the  affirmative.  An  argument  ensued  as  to  which  question  was  as  a 
matter  of  law  the  proper  question  to  be  left.  The  county  court  judge 
held  that  the  second  was  the  proper  question.  He  therefore  entered 
g'udgment  for  the  defendant. 

The  plaintiff  appealed  to  a  Divisional  Court,  who  entered  judgment 
for  the  plaintiff,  [1911]  2  K.  B.  837. 

The  defendant  appealed. 

Kennedy,  L.  J.  I  have  come  to  the  conclusion  that  this  appeal 
ought  to  be  allowed  and  the  judgment  of  the  learned  judge  of  the 
county  court  restored. 

With  parts  of  the  judgments  pronounced  in  the  Divisional  Court  I 
agree.  I  agree  in  holding  that  an  interference  with  the  property  or 
the  person  of  another,  which  otherwase  would  certainly  constitute  an 
actionable  trespass,  cannot  be  justified  by  mere  proof  on  the  part  of 
the  alleged  trespasser  of  his  good  intention  and  of  his  belief  in  the  ex- 
istence of  a  danger  which  he  sought  by  his  act  of  interference  to  avert, 
but  which  in  fact  did  not  exist  at  all.  The  case  cited  by  PhilHmore,  J., 
from  the  Year  Book,  Hil.  22  Edw.  4,  f.  45,  pi.  9,  10,  as  to  the  imprison- 
ment of  a  supposed  lunatic,  supports  and  illustrates  this  \'iew.  The 
person  imprisoned  was  not  in  fact  a  lunatic;  therefore  there  was  not 
any  basis  of  danger  to  justify  his  imprisonment.  There  are,  however, 
two  points  upon  which  I  respectfully  differ  from  the  Di\'isional  Court 
in  the  present  case.  The  first  of  these  is  that  the  learned  judges  in  that 
Court  have  decided  against  the  defendant  upon  the  ground  that,  ac- 
cording to  the  first  of  the  two  findings  of  the  jury,  he  has  failed  to  prove 
that  his  interference  with  the  plaintiff's  property  —  the  patches  of 
heather  which  the  defendant  burned  —  was  actually  necessary  in  order 
to  save  the  covert  in  which  were  the  nesting  pheasants  from  being  in- 
volved in  the  conflagration.  They  have  held  that  the  second  finding 
of  the  jury  that  the  course  which  the  defendant  pursued  in  order  to 
save  the  nesting  pheasants  was  "reasonably  necessary"  afforded  no 
defense.  The  principle  of  such  a  decision,  as  it  appears  to  me,  can 
only  be  that,  although  at  the  moment  of  the  interference  of  an  alleged 
trespasser  uath  the  property  of  another  the  danger  to  life  or  property 
which  it  was  sought  to  avert  by  that  interference  was  a  real  and  ex- 
istent danger,  and  a  danger  so  imminent  that  any  reasonable  man 
would  in  the  circumstances  treat  it  as  one  in  which  it  was  necessary, 
in  order  to  save  life  or  property  endangered,  to  interfere  as  the  alleged 
trespasser  has  done,  he  must  be  held,  nevertheless,  guilty  of  a  trespass, 


SECT.  III.]  COPE    V.    SHARPE.  757 

unless  he  can  also  prove  that,  but  for  that  interference,  the  person  or  the 
property  which  he  sought  to  protect  must  —  for  nothing  less  than  this 
is  the  meaning  of  the  expression  "actually  necessary"  —  have  suffered 
harm  or  loss. 

I  do  not  think  that  this  is  the  law.  The  justification  of  such  inter- 
ference depends,  in  my  judgment,  upon  the  state  of  things  at  the 
moment  at  which  the  interference  takes  place,  and  not  upon  the 
inference  as  to  necessity  to  be  drawn  from  the  event.  A  house  is  on 
fire;  the  fire,  as  the  wind  is  blowing,  creates  an  imminent  danger  for 
the  occupant  of  the  adjoining  premises,  and  he,  to  avert  that  danger, 
pours  water  into  the  burning  house.  Let  us  suppose  that  the  wind 
suddenly  changes,  or  that  unforeseen  assistance  arrives,  so  that  in  the 
event  it  is  plain  that  the  discharge  of  water  into  the  burning  house  was 
not  actually  necessary  for  the  preservation  of  the  adjoining  premises; 
can  it  rightly  be  contended  that  if,  upon  the  trial  of  an  action  brought 
by  the  owner  of  the  burning  house  to  recover  compensation  for  prop- 
erty which  was  damaged  by  the  water,  it  was  proved  to  the  satisfac- 
tion of  the  jury  that  the  commission  of  the  act  complained  of  was,  at 
the  time  when  such  damage  was  done,  "reasonably  necessary"  (in  the 
words  of  the  second  finding  of  the  jury  in  the  present  case)  in  order  to 
save  life  or  property  in  the  premises  then  endangered  by  their  prox- 
imity to  the  conflagration,  the  plaintiff  would  nevertheless  succeed, 
because  it  was  proved  by  him  at  the  trial  that,  by  reason  of  the  subse- 
quent change  of  wind  or  by  reason  of  the  arrival  of  unforeseen  assist- 
ance, his  neighbor's  precaution  was,  in  the  event,  actually  unnecessary? 

Or,  take  the  case  of  the  jettison  of  cargo  at  sea.  Could  it  properly 
be  contended  that  the  legal  justification  of  the  jettison  depends  upon 
proof  that  in  fact,  as  things  have  happened,  it  was  actually  necessary 
for  the  safety  of  the  adventure,  and  that  a  jettison  made  reasonably 
in  order  to  preserve  the  adventure  from  imminent  peril  of  destruc- 
tion in  a  gale  must  be  held  to  be  unjustifiable,  if  the  owner  of  the  goods 
jettisoned  can  prove  that,  after  the  jettison  took  place,  a  sudden  fall 
of  the  wind  or  a  sudden  change  in  its  direction  removed  the  peril  and 
that,  therefore,  the  adventure  would  in  fact  have  been  preserved  with- 
out the  jettison?  In  my  humble  judgment,  this  question  ought  to  be 
answered  in  the  negative;  and,  if  authority  is  sought  upon  the  point, 
I  think  it  sufficiently  appears  in  the  judgment  of  Brett,  L.  J.,  in  WTiite- 
cross  Wire  Co.  v.  Sax-ill,  8  Q.  B.  D.  653,  and  in  the  statement  in  2 
Phillips  on  Insurance,  3d  ed.,  ch.  15,  s.  1,  par.  1270  (cited  in  the  argu- 
ment of  the  last  mentioned  case),  that,  "in  order  to  constitute  a  basis 
for  a  contribution  for  an  expense  or  sacrifice"  —  or,  in  other  words,  in 
order  to  justify  the  destruction  or  damage  of  property  at  sea  for  the 
safety  of  the  adventure — "it  must  be  occasioned  by  an  apparently  im- 
minent ■peril."  I  do  not  think  that  either  Mouse's  Case,  12  Rep.  63,  or 
Maleverer  v.  Spinke,  Dyer,  35  b.,  or  Dewey  v.  White,  Moo.  &  M.  56, 
cited  by  Phillimore,  J.,  furnish  any  authority  for  an  opposite  \iew. 


758  COPE   V.   SHARPE.  [CHAP.  V, 

On  the  contrary,  it  appears  to  me  that  the  judgment  of  Best,  C.  J., 
in  Dewey  v.  White,  Moo.  &  M,  56,  in  comparing  the  justification 
of  the  damage  caused  by  pulHng  down  a  dangerous  structure  with  the 
justification  in  the  case  of  maritime  jettison,  tends  to  support  the 
contention  of  the  appellant.  These  cases  do  show  that  the  law  re- 
quires, in  order  to  make  good  a  defense  in  an  action  of  trespass  for 
interference  with  the  property  of  another  for  the  purpose  of  averting 
an  imminent  danger,  that  the  defendant  shall  prove  that  such  a  danger 
existed  actually,  and  not  merely  in  the  belief  of  the  defendant.  They 
do  not  show  that,  even  if  the  existence  of  such  an  imminent  danger  as 
to  vindicate  the  reasonableness  of  the  interference  in  order  to  preserve 
property  exposed  to  the  danger  is  proved,  the  defense  must  still  fail 
unless  it  is  also  proved  that  the  interference  was,  in  the  circumstances 
as  they  eventually  happened,  actually  necessary,  that  is  to  say,  that  the 
property  sought  to  be  preserved  must,  but  for  the  interference  com- 
plained of,  have  suffered  injury  or  destruction.  Nor  is  there  anything 
in  my  own  judgment  in  Carter  v.  Thomas,  [1893]  1  Q.  B.  673,  to  which 
I  refer  only  because  it  is  mentioned  by  Phillimore,  J.,  that  conflicts 
with  the  \aews  which  I  have  just  expressed.  What  I  was  there  at  pains 
to  point  out  was  that  in  the  case  of  a  mere  volunteer  it  would  require 
very  special  circumstances  to  justify,  on  the  ground  of  reasonable  neces- 
sity, his  forcible  entry  into  the  premises  of  another  against  the  will  of 
the  owner,  in  order  to  help  in  extinguishing  a  fire.  In  the  present  case, 
the  defendant  was  not  a  mere  volunteer,  and  therefore  no  such  question 
arises  for  consideration.  He  was  the  gamekeeper  in  the  service  of  Mr. 
Chase,  to  whom  the  plaintiff,  the  landowner,  had  let  the  sporting  rights 
over  his  estate,  including  the  land  on  which  the  fire  occurred  and  on 
which  were  the  heather  patches  fired  by  the  defendant  and  the  covert 
sheltering  the  nesting  birds  wliich  the  defendant  sought  to  protect 
from  the  fire  by  destroying  some  patches  of  the  heather  in  advance  of 
the  flames.  The  defendant's  fulfillment  of  a  duty  to  his  master,  as 
Hamilton,  J.,  points  out,  could  not  affect  any  right  of  the  plaintiff,  but, 
at  the  same  time,  in  acting  for  his  master,  the  defendant  was,  as  against 
the  plaintiff,  entitled  to  stand  in  the  same  position  as  his  master  as  lessee 
of  the  sporting  rights  who  had,  as  tenant,  the  right  to  maintain  the 
game  by  all  means  which  did  not  involve  unreasonable  interference 
with,  or  damage  to,  the  property  of  the  lessor.    Reasonableness  —  the 

I  term  which  our  law  in  so  many  cases  treats  as  the  test  of  legality  in 
questions  of  human  conduct  —  of  course  includes,  when  you  are  con- 
sidering the  legality  of  the  destruction  of  another's  property,  the  com- 

'  parison  {inter  alia)  of  the  value  of  that  which  is  destroyed  or  damaged 
in  order  to  preserve  it.  Here,  as  the  judgment  pronounced  by  Philli- 
more, J.,  shows,  the  damage  resulting  from  the  defendant's  act  was  not 
more  than  nominal.  It  appears  to  me  that,  in  considering  the  reason- 
ableness of  the  defendant's  conduct  in  the  present  case,  the  jury  were 
warranted  in  including  in  the  circumstances  to  which  they  expressly 


SECT.  III.]  COPE    V.    SHARPE.  759 

refer  in  their  second  finding  the  fact  that  the  defendant  was  not  a  mere 
volunteer  but,  as  representing  his  employer,  the  plaintiff's  tenant,  in- 
vested, as  against  the  plaintiff  as  well  as  others,  with  the  right  to 
preserve  the  sitting  pheasants  from  being  burned  by  reasonable 
methods. 

I  have  so  far  been  dealing  with  the  view  of  the  Divisional  Court  that 
a  defense  of  "actual  necessity"  must  be  proved  in  order  to  establish 
an  answer  to  the  plaintiff's  case  in  this  action.  But  I  am  further  obliged 
to  differ  from  them  in  the  construction  which  they  appear  to  have 
placed  upon  the  second  finding  of  the  jury.  By  that  finding  the  jury 
in  express  terms  decided  that  "  the  method  adopted  by  the  defendant 
for  the  protection  of  his  master's  property  was  reasonably  necessary  in 
the  circumstances."  The  learned  judges  in  the  Divisional  Court,  if  I 
correctly  understand  their  judgments,  have  construed  this  finding  to 
mean  only  that  the  defendant  reasonably  believed  that  a  danger  to  his 
master's  property  existed  requiring  his  interference,  but  that  in  fact 
no  such  danger  existed.  I  must  confess  myself  unable  so  to  interpret 
it.  I  do  not  think  this  is  the  fair  or  natural  meaning  of  the  words. 
The  jury,  in  my  view,  have  not  found  that  the  method  adopted  by  the 
defendant  was  unnecessary.  They  have  found  that  it  was  in  fact  not 
necessary;  they  have  found  that  it  was  necessary  in  reason.  They 
have  not  in  either  of  their  findings  negatived  the  existence  of  an  immi- 
nent danger.  Read,  as  it  ought  to  be,  in  contrast  with  the  first  find- 
ing that  no  "actual  necessity"  existed,  the  second  finding,  that  a 
"reasonable  necessity"  for  the  defendant's  action  did  exist,  mvst,  I 
think,  mean  that  there  was,  at  the  time  when  the  defendant  acted,  a 
danger  to  the  property  of  the  defendant's  master,  so  far  imminent  that 
any  reasonable  person  in  the  circumstances  of  the  defendant  would  act 
reasonably  in  treating  it  as  necessary  to  adopt  the  method  for  the 
preservation  of  the  property  in  jeopardy  which  the  defendant  adopted. 
So  interpreted,  this  finding  in  my  opinion  gives  the  defendant,  as  it  was 
held  by  the  learned  county  court  judge  who  tried  the  case,  a  good 
defense,  and  this  opinion  appears  to  me  to  be  in  accord  with  the  state- 
ment of  the  law  by  Bramwell,  B.,  in  Kirk  v.  Gregory,  1  Ex.  D.  55,  from 
which  the  other  members  of  the  court  (Amphlett,  B.,  and  Cleasby,  B.) 
in  no  way  dissented.    I  think  that  this  appeal  should  be  allowed.^ 

Appeal  allowed. 

*  The  concurring  opinion  of  Buckley,  L.  J.,  and  the  dissenting  opinion  of  Vaughan 
"Williams,  L.  J.,  are  omitted.  —  Ed. 


760  COMMONWEALTH   V.  DONAHUE.  [CHAP.  V. 


COMMONWEALTH  v.  DONAHUE. 
Supreme  Judicial  Court  of  Massachusetts.     1889. 

[Reported  148  Massacliusetts,  r)29.] 

Holmes,  J.  This  is  an  indictment  for  robbery,  on  which  the  defend- 
ant has  been  found  guilty  of  an  assault.  The  evidence  for  the  Com- 
monwealth was,  that  the  defendant  had  bought  clothes,  amounting  to 
twenty-one  dollars  and  fifty-five  cents,  of  one  Mitchelman,  who  called 
at  the  defendant's  house,  by  appointment,  for  his  pay  ;  that  some  dis- 
cussion arose  about  the  bill,  and  that  the  defendant  went  upstairs, 
brought  down  the  clothes,  placed  them  on  a  chair,  and  put  twenty 
dollars  on  a  tal)le,  and  told  Mitchelman  that  he  could  have  the  money 
or  the  clothes  ;  that  Mitchelman  took  the  money  and  put  it  in  his 
pocket,  and  told  the  defendant  he  owed  him  one  dollar  and  fiftj'-five 
cents,  whereupon  the  defendant  demanded  his  money  back,  and  on 
Mitchelman  refusing,  attacked  him,  threw  him  on  the  floor,  and  choked 
him  until  Mitchelman  gave  him  a  pocketbook  containing  twenty-nine 
dollars.  The  defendant's  counsel  denied  the  receiving  of  the  pocket- 
book,  and  said  that  he  could  show  that  the  assault  was  justifiable, 
under  the  circumstances  of  the  case,  as  the  defendant  believed  that 
he  had  a  right  to  recover  his  own  money  by  force  if  necessary.  The 
presiding  justice  stated  that  he  should  be  obliged  to  rule  that  the 
tlefendant  would  not  be  justified  in  assaulting  Mitchelman  to  get  his 
own  money,  and  that  he  should  rule  as  follows  :  "  If  the  jury  are  satis- 
fied that  the  defendant  choked  and  otherwise  assaulted  Mitchelman, 
they  would  be  warranted  in  finding  the  defendant  guilty,  although  the 
sole  motive  of  the  defendant  was  b}'  this  violence  to  get  from  Mitchel- 
man by  force  money  which  the  defendant  honestly  believed  to  be  his 
o-.vn."  Upon  this  the  defendant  saved  his  exceptions,  and  declined  to 
introduce  evidence  ;  the  jury  were  instructed  as  stated,  and  found  the 
defendant  guilty. 

On  the  evidence  for  the  Commonwealth,  it  appeared,  or  at  the  lowest 
the  jury  might  have  found,  that  the  defendant  offered  the  twenty  dollars 
to  Mitchelman  only  on  condition  that  Mitchelman  should  accept  that 
sum  as  full  payment  of  his  disputed  bill,  and  that  Mitchelman  took  the 
money,  and  at  the  same  moment,  or  just  afterwards,  as  part  of  the 
same  transaction,  repudiated  the  condition.  If  this  was  the  case,  — 
since  Mitchelman,  of  course,  whatever  the  sum  due  him,  had  no  right 
to  that  particular  mone}-  except  on  the  conditions  on  which  it  was 
offered  (Commonwealth  v.  Stebbins,  8  Gray,  492),  —  he  took  the  money 
wrongfully  from  the  possession  of  the  defendant,  or  the  jury  might 
have  found  that  he  did,  whether  the  true  view  be  that  the  defendant 
did  not  give  up  possession,  or  that  it  was  obtained  from  him  hy  Mitchel- 
man's  fraud.     Commonwealth  v.  Devlin,  141  Mass.  423,  431  ;  Chisser's 


SECT.  III.] 


COMMONWEALTH    V.    DONAHUE. 


761 


Case,  T.  Raj-m.  275,  276  ;  Regiiia  v.  Thompson,  Leigh  &  Cave,  225 ; 
Regina  v.  Stanley,  12  Cox  C.  C.  269  ;  Regina  r.  Rod  way,  9  C.  &  P. 
784  ;  Rex  v.  Wilfiams,  6  C.  &  P.  390 ;  2  East  P.  C.  c.  16,  ss.  110,  113. 
See  Regina  r.  Cohen,  2  Den.  C.  C.  249,  and  cases  infra.  The  defend- 
ant made  a  demand,  if  that  was  necessary,  which  we  do  not  imply, 
before  using  force.  Green  v.  Goddard,  2  Salk.  641  ;  Polkinhorn  v. 
Wright,  8  Q.  B.  (N.  S.)  197;  Commonwealth  v.  Clark,  2  Met.  23,  25, 
and  cases  infra. 

It  is  settled  b}-  ancient  and  modern  authority  that,  under  such  cir- 
cumstances, a  man  may  defend  or  regain  his  momentarily  interrupted 
possession  by  the  use  of  reasonable  force,  short  of  wounding  or  the 
employment  of  a  dangerous  weapon.  Commonwealth  v.  Lynn,  123 
Mass.  218;  Commonwealth  v.  Kennard.  8  Pick.  133;  Anderson  v. 
State,  6  Baxter,  608;  State  v.  ElHot,  11  N.  H.  540,  545;  Rex  t\ 
Milton,  Mood.  &  Malk.  107  :  Y.  B.  9  Edw.  IV.  28,  pi.  42  ;  19  Hen.  VL 
31,  pi.  59  ;  21  Hen.  VI.  27,  pi.  9.  See  Seaman  v.  Cuppledick,  Owen, 
150  ;  Ta^-lor  v.  Markham,  Cro.  Jac.  224  ;  s.  c.  Yelv.  157,  and  1  Brownl. 
215  ;  Shingleton  v.  Smith,  Lutw.  1481,  1483  ;  2  Inst.  316  ;  Finch,  Law, 
203  ;  2  Hawk.  P.  C  c.  60,  s.  23  ;  3  Bl.  Com.  121.  To  this  extent  the 
right  to  protect  one's  possession  has  been  regarded  as  an  extension  of 
the  right  to  protect  one's  person,  with  which  it  is  generally  mentioned. 
Baldwin  v.  Hayden,  6  Conn.  453  ;  Y.  B.  19  Hen.  VI.  31,  pi!  59  ;  Rogers 
r.  Spence,  13  M.  &  W.  571,  581  ;  2  Hawk.  P.  C.  c.  60,  s.  23  ;  3  Bl 
Com.  120,  131. 

We  need  not  consider  whether  this  explanation  is  quite  adequate. 
There  are  weighty  decisions  which  go  further  than  those  above  cited, 
and  which  hardly  can  stand  on  the  right  of  self-defence,  but  involve 
other  considerations  of  policy.  It  has  been  held  that,  even  where  a 
considerable  time  had  elapsed  between  the  wrongful  taking  of  the 
defendant's  property*  and  the  assault,  the  defendant  had  a  right  to 
regain  possession  by  reasonable  force,  after  demand  upon  the  third 
person  in  possession,  in  like  manner  as  he  might  have  protected  it  ^ 
without  civil  liability.  Whatever  the  true  rule  may  be,  probably  there 
is  no  difference  in  this  respect  between  the  civil  and  the  criminal  law. 
Blades  v.  Higgs,  10  C.  B.  (N.  S.)  713  ;  12  C.  B.  (N.  S.)  501  ;  13  C.  B. 
(N.  S.)  844;  and  11  H.  L.  Cas.  621;  Commonwealth  v.  McCue,  16 
Gray,  226,  227.  The  principle  has  been  extended  to  a  case  where  the 
defendant  had  yielded  possession  to  the  person  assaulted,  through  the 
fraud  of  the  latter.  Hodgeden  v.  Hubbard,  18  Vt.  504.  See  Johnson 
V.  Perry,  56  Vt.  700.  On  the  other  hand,  a  distinction  has  been  taken 
between  the  right  to  maintain  possession  and  the  right  to  regain  it 
from  another  who  is  peaceably  established  in  it,  although  the  possession 
of  the  latter  is  wrongful.  Bobb  v.  Bosworth,  Litt.  Sel.  Cas.  81.  See 
Barnes  v.  Martin,  15  Wis.  240  ;  Andre  v.  Johnson,  6  Blackf.  375  ; 
Davis  V.  Whitridge,  2  Strobh.  232  ;  3  Bl.  Com.  4.  It  is  unnecessary 
to  decide  whether,  in  this  case,  if  Mitchelman  had  taken  the  money 
with  a  fraudulent  intent,  but  had  not  repudiated  the  condition  until 


762  HODGEDEN    V.    HUBBAKD.  [CHAP.  V. 

afterwards,  the  defendant  would  have  had  any  other  remedy  than  to 
liold  him  to  his  bargain  if  he  could,  even  if  he  knew  that  Mitchelman 
still  had  the  identical  money  upon  his  person. 

If  the  force  used  by  the  defendant  was  excessive,  the  jury  would 
have  been  warranted  in  finding  him  guilty.  Whether  it  was  excessive 
or  not  was  a  question  for  them  ;  the  judge  could  not  rule  that  it  was 
not,  as  matter  of  lawo  Commonwealth  v.  Clark,  2  Met.  23.  Therefore 
the  instruction  given  to  them,  taken  only  literall}*,  was  correct.  But 
the  preliminary  statement  went  further,  and  was  erroneous  ;  and  coup- 
ling that  statement  with  the  defendant's  offer  of  proof,  and  his  course 
after  the  rulings,  we  think  it  fair  to  assume  that  the  instruction  was  not 
understood  to  be  limited,  or,  indeed,  to  be  directed  to  the  case  of 
excessive  force,  which,  so  far  as  appears,  had  not  been  mentioned,  but 
that  it  was  intended  and  understood  to  mean  that  any  assault  to  regain 
his  own  money  would  warrant  finding  the  defendant  guilty.  Therefore 
the  exceptions  must  be  sustained. 

It  will  be  seen  that  our  decision  is  irrespective  of  the  defendant's 
belief  as  to  what  he  had  a  right  to  do.  If  the  charge  of  robbery  had 
been  persisted  in,  and  the  difficulties  which  we  have  stated  could  have 
been  got  over,  we  might  have  had  to  consider  cases  like  Regina  r- 
Boden,  1  C.  &  K.  395,  397  ;  Regina  r.  Hemmings,  4  F.  &  F.  50  ; 
vState  V.  Hollyway,  41  Iowa,  200.  Compare  Commonwealth  v.  Steb- 
bins,  8  Gray,  492  ;  Commonwealtli  v.  McDuffy,  126  Mass.  467.  There 
is  no  question  here  of  the  effect  of  a  reasonable  but  mistaken  belief 
with  regard  to  the  facts.  State  v.  Nash,  88  N.  C.  618.  The  facts  were 
as  the  defendant  believed  them  to  be.  Mcceptions  sustained. 


HODGEDEN  v.   HUBBARD. 
Supreme  Court  of  Vermont,  1843. 

[Reported  18  Vt.  504.] 

Trespass  for  assault  and  battery,  and  for  taking  and  carrying  away 
a  stove,  the  property  of  the  plaintiff.  Plea  the  general  issue,  with  notice 
of  special  matter  of  defense,  and  trial  by  jury,  —  Redfield,  J.,  pre- 
siding. On  trial  the  plaintiff  gave  evidence,  tending  to  prove,  that,  on 
the  nineteenth  day  of  September,  1842,  he  purchased  at  the  Tyson 
warehouse,  in  Montpelier,  a  stove,  and  gave  his  promissory  note  there- 
for, payable  in  six  months;  that  the  agent,  who  had  charge  of  the 
warehouse,  was  absent  at  the  time,  and  the  sale  was  made  by  the  de- 
fendant Hubbard,  who  was  clerk  for  the  agent,  as  was  also  the  defendant 
Ayres;  that  on  the  same  day,  and  soon  after  the  sale,  the  defendants 
learned,  that  the  plaintiff  was  irresponsible  as  to  property,  and  started 


11 


SECT.  III.]  HODGEDEN   V.    HUBBARD.  763 

in  pursuit  of  him,  and  overtook  him  about  two  miles  from  Montpelier 
and  took  the  stove  from  him  by  force;  but  it  did  not  appear,  how  much 
force  was  used,  or  its  character;  but  it  did  appear,  that,  in  the  attempt 
to  dispossess  the  plaintiff  of  the  stove,  he  drew  his  knife,  and  that  he 
was  then  forcibly  held  by  one  of  the  defendants,  while  the  other  took 
possession  of  the  stove;  and  the  testimony  tended  to  prove,  that  the 
resistance  of  the  plaintiff  was  such,  that  the  defendants  used  vio- 
lence and  applied  force  to  his  person  with  great  rudeness  and  outrage. 
The  defendants  then  gave  evidence,  tending  to  prove  that  the  pur- 
chase of  the  stove  by  the  plaintiff  was  effected  by  means  of  his  false 
and  fraudulent  representations  as  to  his  ability  to  pay,  and  as  to  the 
amount  of  his  property;  that,  among  other  things,  the  plaintiff  repre- 
sented, that  he  owned  a  farm  in  Cabot  and  considerable  stock  upon  it, 
that  he  owned  the  team  that  he  then  had  with  him,  and  that  he  carried 
on  a  large  business  manufacturing  butter  firkins,  etc.;  that  it  was 
only  by  means  of  these  representations,  and  others  of  like  character, 
that  Hubbard  was  induced  to  sell  the  stove  to  the  plaintiff  on  credit; 
that  soon  after  the  delivery  of  the  stove,  on  the  same  day,  Hubbard 
learned,  upon  inquiry,  from  a  person  whom  he  saw  from  Cabot,  that 
the  plaintiff  was  entirely  irresponsible,  and  that  his  representations  as 
to  his  property  were  wholly  false;  and  that  the  defendants  immediately 
followed  the  plaintiff,  and  took  the  stove  from  him,  and  told  him  that 
he  could  have  the  note  by  calling  for  it. 

The  defendants  requested  the  court  to  instruct  the  jury,  that,  if  they 
should  find  that  the  purchase  of  the  stove  on  credit  was  effected  only 
by  means  of  the  false  and  fraudulent  representations  of  the  plaintiff,  as 
above  specified,  the  title  to  the  stove  did  not  vest  in  the  plaintiff,  and 
the  defendants,  as  servants  of  the  agent  of  the  Tyson  warehouse,  were 
justified  in  pursuing  the  plaintiff  and  taking  the  stove  from  him  by 
force,  and  that,  if  they  used  no  more  force  than  was  absolutely  neces- 
sary to  effect  this  object,  the  plaintiif  could  not  recover  upon  his  count 
for  an  assault  and  battery.  But  the  court  charged  the  jury  that, 
although  the  plaintiff  was  guilty  of  misrepresentation  and  fraud,  in  ob- 
taining the  stove,  in  the  manner  attempted  to  be  proved  by  the  de- 
fendants, yet  this  would  not  justify  the  defendants  in  forcibly  taking 
the  property  from  him;  that  the  property  in  the  stove  would  not  be 
changed  by  the  purchase,  and  the  defendants  might  take  it  peaceably, 
wherever  they  could  find  it;  but  that  the  defendants,  having  delivered 
the  stove  to  the  plaintiff,  could  not  justify  taking  it  from  him  by 
blows  inflicted  upon  his  person,  or  by  holding  him,  but  should  resort  to 
redress  by  legal  process;  and  that,  if  they  should  find,  that  the  prop- 
erty in  the  stove  was  not  changed,  for  the  reason  stated,  and  that  the 
defendants  took  it  by  violence,  in  the  manner  attempted  to  be  shown 
by  the  plaintiff,  although  they  used  no  more  force  than  was  necessary 
to  accomplish  that  object  under  the  resistance  of  the  plaintiff,  they 
would  still  be  liable  in  this  action;   but  the  court,  in  that  case,  recom- 


764  HODGEDEN   V.    HUBBARD.  [CHAP.  V. 

mended  to  the  jury  to  give  small  damages.  Verdict  for  plaintiff  for 
one  dollar  damages. 

Williams,  C.  J.  It  is  admitted,  in  this  case,  that  the  property  in  the 
stove  did  not  pass  to  the  plaintiff,  that,  though  the  plaintiff  obtained 
possession  of  the  stove,  yet  it  was  by  such  means  of  falsehood  and  fraud, 
criminal  in  the  eye  of  the  law,  as  made  the  possession  unlawful,  and 
that,  although  the  consent  of  the  owner  was  apparently  obtained  to 
the  delivery  of  the  possession  to  the  plaintiff,  yet,  as  it  respects  the 
plaintiff,  and  so  far  as  the  right  of  property  was  concerned,  no  such 
consent  was  given.  In  the  cases  of  Buffington  v.  Gerrish,  15  Mass.  156, 
and  Badger  v.  Phinney,  lb.  359,  it  was  decided  that,  under  similar  cir- 
cumstances, as  between  the  owner  and  the  person  thus  obtaining  prop- 
erty, or  between  the  owner  and  the  existing  creditors  of  such  person,  no 
property  passed  out  of  the  real  owner,  and  he  might  reclaim  it,  as  against 
such  person,  or  his  creditors. 

In  the  present  case  the  defendants  had  clearly  a  right  to  retake  the 
property,  thus  fraudulently  obtained  from  them,  if  it  could  be  done 
without  unnecessary  violence  to  the  person,  or  without  breach  of  the 
peace.  It  is  admitted  by  the  counsel  for  the  plaintiff,  that  a  right  to 
re-capture  existed  in  the  defendants,  if  it  could  be  done  without  vio- 
lence, or  breach  of  the  peace.  And  how  far  this  qualification  of  the 
right  to  retake  property,  thus  taken,  was  intended  for  the  security,  or 
benefit,  of  the  fraudulent  possessor  may  admit  of  some  doubt.  Who- 
ever is  guilty  of  a  breach  of  the  peace,  or  of  doing  unnecessary  violence 
to  the  person  of  another,  although  it  may  be  in  the  assertion  of  an  un- 
questioned and  undoubted  right,  is  liable  to  be  prosecuted  therefor. 
But  the  fraudulent  possessor  is  not  the  protector  of  the  public  interest. 

In  the  case  before  us  it  is  stated,  that  it  did  not  appear  "how  much 
force  was  used,  or  its  character,"  before  the  defendants  were  assaulted 
by  the  plaintiff.  To  obtain  possession  of  the  property  in  question  no 
violence  to  the  person  of  the  plaintiff  was  necessary,  or  required,  unless 
from  his  resistance.  It  was  not  like  property  carried  about  the  person, 
as  a  watch,  or  money;  nor  did  it  require  a  number  of  people  to  effect 
the  object.  The  plaintiff  had  no  lawful  possession,  nor  any  right  to  re- 
sist the  attempts  of  the  defendants  to  regain  the  property,  of  which  he 
had  unlawfully  and  fraudulently  obtained  the  possession.  By  drawing 
his  knife  he  became  the  aggressor,  inasmuch  as  he  had  no  right  thus  to 
protect  his  fraudulent  attempt  to  acquire  the  stove,  and  the  possession 
of  the  same,  and  it  was  the  right  of  the  defendants  to  hold  him  by  force, 
and,  if  they  made  use  of  no  unnecessary  ^"iolence,  they  were  justified; 
if  they  were  guilty  of  more,  they  were  liable. 

Under  the  view  of  the  eiadence,  as  considered  and  claimed  by  the 
defendants,  they  were  entitled  to  the  charge  requested.  The  refusal 
of  the  court  so  to  charge  was  erroneous ;  and  although  the  court  stated 
to  the  jury  correctly,  that  the  defendants  could  not  justify  retaking 
the  property  by  blows  inflicted  on  the  person  of  the  plaintiff,  yet  this 


I 


SECT.  III.]  McLEOD   V.   JONES.  765 

was  not  meeting  the  request;  and  the  charge  was  evidently  erroneous, 
when  the  jury  were  told,  that  the  defendants  would  be  liable,  although 
they  used  no  more  force  than  was  necessary  to  accomplish  the  object 
of  retaking  the  property,  under  the  resistance  of  the  plaintiff.  The  re- 
sistance of  the  plaintiff  was  unlawful,  in  regard  to  the  particular  species 
of  property,  which  was  then  the  subject  of  controversy,  under  the  facts 
claimed  by  the  defendants,  and  which  must  have  been  found  to  the 
satisfaction  of  the  jury,  as  would  seem  from  their  verdict. 

On  the  second  count  in  the  declaration  the  plaintiff  could  have  no 
claim  whatever.  The  defendants  were  the  agents  of  the  true  owner; 
the  plaintiff  was  the  wrongdoer,  and  acquired  no  right,  against  the  de- 
fendants, to  either  property,  or  possession,  if  the  facts  were  as  stated  in 
the  case. 

The  judgment  of  the  county  court  is  reversed. 


X 


McLEOD  V.  JONES. 
Supreme  Judicial  Court  of  Massachusetts    1870. 

[Reported  105  Mass.  403.] 

Tort  for  forcibly  entering  the  plaintiff's  close  in  Taunton,  and 
removing  and  converting  to  the  defendant's  use  household  furniture 
found  therein. 

At  the  trial  in  the  Superior  Court,  before  Pitman,  J.,  property  in 
and  possession  of  the  close  (which  was  the  upper  story  of  a  house)  by 
the  plaintiff  were  admitted;  and  the  plaintiff  introduced  evidence  to 
show  that  he  had  hired  and  occupied  the  premises  as  a  residence  and 
dwelling  for  himself  and  his  wife  and  two  children,  about  two  years, 
when  in  wSeptember,  1868,  he  took  them  on  a  visit  to  Fall  River,  and  he 
himself  went  to  New  York  on  a  visit  to  his  father;  that  he  intended  to 
return  to  Taunton  in  about  four  weeks,  but  for  various  reasons  changed 
his  original  design  and  ceased  to  reside  in  Taunton;  that  three  or 
four  days  after  he  went  away,  "leaving  his  furniture  and  household 
goods  in  the  same  state  as  he  used  them  for  housekeeping  purposes, 
and  the  doors  of  his  tenement  locked,"  the  defendant  went  to  the  house 
with  a  key  that  would  fit  the  door,  unlocked  and  entered  the  tenement, 
and  took  and  carried  away  the  furniture. 

It  appeared  "that  the  plaintiff,  while  living  in  Providence,  had  given 
to  the  defendant  a  bill  of  sale  of  a  part  or  the  whole  of  the  articles  of 
furniture,  and  had  subsequently  brought  them  with  him  to  Taunton; 
and  that  the  plaintiff  had  formerly  given  to  the  defendant  a  mortgage 
of  certain  goods  owned  and  used  l>y  the  plaintiff  in  his  shop,  some  of 
which  goods  the  plaintiff  testified  that  he  subsequently  carried  to  his 
house,  and  were  among  the  goods  taken  by  the  defendant." 


76G  McLEOD   V.    JONES.  [CHAP.  V. 

The  defendant  claimed  all  the  articles  taken  by  him,  under  the  bill 
of  sale  and  mortgage,  and  contended  that,  from  the  circumstances 
proved,  he  had  a  right  to  believe  that  at  the  time  of  the  entry  the 
plaintiff  did  not  intend  to  return  to  Taunton;  and  he  asked  the  judge 
to  rule  that  "  if  the  plaintiff  had  left  the  city  with  his  family,  leaving 
household  furniture,  the  defendant's  property,  in  his  last  place  of  resi- 
dence in  the  city,  a  hired  tenement,  and  the  defendant,  having  reason- 
able cause  to  believe,  and  believing,  that  the  plaintiff  and  family  did  not 
intend  to  return,  entered  said  residence  in  a  quiet  and  peaceable  man- 
ner and  took  away  his  goods,  causing  no  other  disturbance  than  was 
necessary  in  order  to  get  the  same,  he  would  not  be  liable  in  this  action." 
The  judge  refused  so  to  rule;  and  ruled  that  "if  the  defendant  entered 
the  plaintiflf's  dwelling-house  in  the  manner  shown  by  the  plaintiff'^ 
evidence  above  reported,  and  carried  away  the  goods  as  shown  by  the 
plaintiff's  e\adence,  he  would  be  liable  in  this  action  for  a  forcible  en- 
try, although  he  went  there  to  get  his  own  property;  and  that  the 
defendant  would  have  no  right  to  enter  the  same  in  such  a  manner, 
and  for  such  a  purpose,  without  some  license  or  permission  from  the 
plaintiff,  express  or  implied,  other  than  the  mere  fact  that  his  goods 
were  in  said  premises  under  the  circumstances  before  stated."  The 
jury  returned  a  verdict  for  the  plaintiff,  and  the  defendant  alleged 
exceptions. 

Wells,  J.  The  defendant  was  liable  as  a  trespasser  for  entering 
the  plaintiff's  close,  unless  he  can  justify  his  entry  by  some  legal  right, 
or  by  some  license  or  permission  so  to  do.  The  plaintiff's  absence  will 
not  excuse  him.  Reasonable  cause  to  believe,  and  actual  belief  that  the 
plaintiff  and  his  family  did  not  intend  to  return,  are  no  defense.  The 
only  question  is,  whether  the  ruling  of  the  court  below  was  correct, 
that  "  the  mere  fact  that  his  goods  were  in  said  premises  under  the  cir- 
cumstances stated"  did  not  furnish  a  sufficient  ground  from  which  a 
Hcense,  permission  or  legal  right  could  be  inferred. 

In  the  decision  of  this  question,  we  must  assume  that  the  defendant's 
claim  would  have  been  sustained,  that  his  title,  as  mortgagee  of  all  the 
property  taken  away  by  him,  was  valid,  and  his  mortgage  debt  un- 
paid. He  had  a  right  then  to  the  possession  of  the  property  which  he 
took. 

But  the  possession  of  the  plaintiff,  as  mortgagor,  was  not  wrongful. 
The  goods  were  rightfully  upon  his  premises.  There  is  nothing  to 
show  that  the  terms  of  the  mortgage,  or  bill  of  sale,  under  which  the 
defendant  claimed  them,  gave  him  any  special  authority  to  enter  for 
the  purpose  of  recovering  the  property,  in  any  event;  nor  that  the 
removal  of  the  goods  from  the  shop  to  the  house,  or  from  Providence 
to  Taunton,  was  inconsistent  with  the  rights  of  the  mortgagee,  or  against 
his  wishes.  The  removal  from  Providence  was  about  two  years  be- 
fore the  time  of  this  entry. 

The  goods  then  were  rightfully  in  the  custody  of  the  plaintiff,  and 


SECT.  III.]  McLEOD   V.  JONES.  767 

within  his  close.  The  defendant  was  the  owner  of  the  legal  title,  with 
a  present  right  of  possession.  Does  that  alone  justify  him  in  a  breach 
of  the  plaintiff's  close?  A  majority  of  the  court  are  of  opinion  that  it 
does  not. 

One  whose  goods  are  stolen,  or  otherwise  illegally  taken  from  him, 
may  pursue  and  retake  them  whenever  they  may  be  found.  No  one 
can  deprive  him  of  this  right,  by  wrongfully  placing  them  upon  his  own 
close.  Patrick  v.  Colerick,  3  M.  &  W.  483.  Webb  v.  Beavan,  6  M.  &  G. 
1055,  and  note.  Com.  Dig.  Trespass  D,  citing  2  Rol.  Ab.  565,  1.  54. 
Bac.  Ab.  Trespass  F,  1.  But  if  they  are  deposited  upon  the  land  of 
another,  who  is  not  a  participant  in  the  wTongful  taking,  the  owner  can- 
not enter  upon  his  land  to  retake  them;  unless  in  case  of  theft,  and 
fresh  pursuit.  20  Vin.  Ab.  506,  Trespass  H,  a.  2,  pi.  4,  5.  So,  from 
the  necessity  of  the  case,  one  whose  cattle  escape  upon  the  land  of  an- 
other may  follow  and  drive  them  back,  without  being  a  trespasser,  un- 
less the  escape  itself  was  a  trespass.  Com.  Dig.  Trespass  D,  citing 
2  Rol.  Ab.  565,  1.  35. 

In  these  cases,  the  law  gives  the  party  a  right  to  enter  for  that  par- 
ticular purpose. 

In  other  cases  a  right  or  license  to  enter  upon  land  results,  or  may  be 
inferred,  from  the  contracts  of  the  parties  in  relation  to  personalty. 
Permission  to  keep,  or  the  right  to  have  one's  personal  property  upon 
the  land  of  another,  involves  the  right  to  enter  for  its  removal.  Doty 
V.  Gorham,  5  Pick.  487.  Bac.  Ab.  Trespass  F,  1.  White  v.  Elwell,  48 
Maine,  360. 

A  sale  of  chattels,  which  are  at  the  time  upon  the  land  of  the  seller, 
will  authorize  an  entry  upon  the  land  to  remove  them,  if,  by  the  express 
or  implied  terms  of  the  sale,  that  is  the  place  where  the  purchaser  is  to 
take  them.  Wood  v.  Manley,  11  Ad.  &  El.  34.  Nettleton  v.  Sikes,  8 
Met.  34.  Giles  v.  Simonds,  15  Gray,  441.  Drake  v.  Wells,  11  Allen, 
141.    McNeal  v.  Emerson,  15  Gray,  384. 

A  license  is  implied,  because  it  is  necessary  in  order  to  carry  the 
sale  into  complete  effect;  and  is  therefore  presumed  to  have  been  in 
contemplation  of  the  parties.  It  forms  a  part  of  the  contract  of  sale. 
The  seller  cannot  deprive  the  purchaser  of  his  property,  or  drive  him 
to  an  action  for  its  recovery,  by  withdrawing  his  implied  permission 
to  come  and  take  it.  This  proposition  does  not  apply,  of  course,  to  a 
case  where  a  severance  from  the  realty  is  necessary  to  convert  the 
subject  of  the  sale  into  personalty,  and  the  revocation  is  made  before 
such  severance. 

But  there  is  no  such  inference  to  be  drawn,  when  the  property,  at  the 
time  of  sale,  is  not  upon  the  seller's  premises;  or  when,  by  the  terms  of 
the  contract,  it  is  to  be  delivered  elsewhere.  And  when  there  is  nothing 
executory  or  incomplete  between  the  parties  in  respect  to  the  property, 
and  there  is  no  relation  of  contract  between  them  affecting  it,  except 
what  results  from  the  facts  of  ownership  or  legal  title  in  one,  and  pos- 


768  McLEOD  V.    JONES.  [CHAP.  V. 

session  in  the  other,  no  inference  of  a  license  to  enter  upon  lauds  for  the 
recovery  of  the  property  can  be  drawn  from  that  relation  alone.  20 
Vin.  Ab.  508,  Trespass  H,  a.  2,  pi.  18.  Anthony  v.  Haneys,  8  Bing.  186. 
Williams  v.  Morris,  8  M.  &  W.  488. 

We  think  the  authorities  cited  illustrate  and  establish  these  dis- 
tinctions. 

It  is  said  in  Com.  Dig.  Trespass  D,  citing  2  Rol.  Ab.  566,  1.  30,  that  I 
may  not  enter  lands  "  for  retaking  goods,  which  he,  who  holds  them  in 
common  with  me,  put  there;  for  though  a  tenant  in  common  may 
retake  goods  in  common,  when  the  other  takes  them,  yet  he  cannot 
justify  a  trespass  to  do  it." 

In  Wood  V.  Manley,  11  Ad.  &  El.  34,  where  the  doctrine  that  a 
sale  of  goods,  to  be  taken  on  the  premises  of  the  seller,  gives  a  license 
to  the  purchaser  to  enter  and  take  them,  is  laid  down,  it  is  guarded  by 
the  remark  of  Patteson,  J.,  "I  do  not  say  that  a  mere  purchase  will 
give  a  license." 

In  Bac.  Ab.  Trespass  F,  1,  it  is  said:  "But  if  J.  S.  have  commanded 
A.  to  deliver  a  beast  to  J.  N.  and  J.  N.  go  into  the  close  of  J.  S.  to  re- 
ceive the  beast,  the  action  does  lie;  for,  as  the  beast  might  have  been 
delivered  at  the  gate  of  the  close,  the  going  of  J.  N.  thereinto  is  not 
necessary." 

In  the  note  to  Webb  v.  Beavan,  6  M.  &  G.  1055,  is  a  citation  from 
the  year  books,  9  Edw.  IV.  35,  in  which  Littleton,  J.,  after  laying  down 
the  doctrine  that  a  man  may  enter  the  close  of  another  to  retake  his 
own  goods  wrongfully  put  there,  is  reported  to  have  said:  "But  it  is 
otherwise  if  I  bail  goods  to  a  man.  I  cannot  enter  his  house  and  take 
the  goods,  for  they  did  not  come  there  by  wrong,  but  by  the  act  of  us 
both." 

It  is  by  the  act  of  both,  that  goods,  upon  which  the  defendant  had 
only  a  chattel  mortgage,  lea\ang  the  possession  rightfully  with  the 
plaintiff,  were  in  the  plaintiff's  house.  In  20  Vin.  Ab.  507,  Trespass  H, 
a.  2,  pi.  12,  it  is  said:  "If  a  man  takes  my  goods  and  puts  them  upon 
his  land,  I  may  enter  and  retake  them.  Contrary  upon  bailment  of 
goods,"  citing  the  above  authority  of  Littleton.  A  note  contains  the 
following:  "  When  a  man  bails  goods  to  another  to  keep,  it  is  not  lawful 
for  him,  though  the  doors  are  open,  to  enter  into  the  house  of  the  bailee 
and  to  take  the  goods,  but  ought  to  demand  them;  and  if  they  are 
denied,  to  bring  writ  of  detinue,  and  to  obtain  them  by  law,"  citing 
Bro.  Ab.  Trespass,  pi.  208,  and  21  Hen.  VII.  13.  A  right  to  enter  the 
premises  of  the  mortgagor,  without  legal  process,  is  not  essential  to  the 
security  of  the  mortgagee  of  personal  property.  Permission  to  do  so  is 
not  implied,  therefore,  from  the  existence  of  that  relation  alone.  If 
there  was  anything  in  the  form  of  the  mortgage  or  bill  of  sale,  or  in  the 
nature  and  circumstances  of  the  plaintiff's  possession  of  the  property, 
which  gave  the  defendant  a  right  to  seek  it  within  the  close  of  the 
plaintiff,  where  it  had  been  deposited  since  the  sale  of  the  mortgage  or 


SECT.  III.]  SALISBURY   V.   GREEN.  769 

bill  of  sale,  it  should  have  been  made  to  appear.  The  burden  was  upon 
the  defendant  to  establish  the  special  right  which  he  set  up  in  justifica- 
tion of  his  entry.  At  the  trial,  he  based  his  right  to  enter,  solely  upon 
his  title  to  the  personal  property,  and  the  supposed  abandonment  of 
the  premises  by  the  plaintiff;  and  asked  the  court  to  rule  that  that 
was  sufficient.  The  court  held  it  to  be  insufficient  "without  some 
license  or  permission  from  the  plaintiff,  express  or  implied."  The  de- 
fendant does  not  show  that  there  was  anything  in  the  terms  of  his  bill 
of  sale  or  mortgage,  or  in  the  situation  of  the  property  at  the  time  it 
was  made,  or  in  the  circumstances  of  the  plaintiff's  possession  at  the 
time  of  the  entry,  from  which  such  license  or  permission  could  be  im- 
plied; and  he  asked  no  instructions  upon  the  evidence,  upon  that 
point,  if  any  existed  at  the  trial. 

In  McNeal  v.  Emerson,  15  Gray,  384,  the  property  mortgaged  was 
furniture,  which  remained  in  the  same  situation  as  when  the  mortgage 
was  made,  and  the  circumstances  left  the  case  in  the  same  position 
substantially  as  a  sale  of  personal  property  to  be  removed  by  the 
purchaser. 

In  the  case  of  Heath  v.  Randall,  4  Cush.  195,  the  jury  must  have 
found,  under  the  instructions  given  them,  that  the  contract  was  that 
the  defendant  had  a  right  to  take  the  property  away  any  day  until 
paid  for;  which  was  plainly  understood  to  mean  a  right  to  take  it  from 
the  premises  of  the  bailee.  It  is  to  be  observed  also,  that  in  that  case  the 
question  pressed  in  the  argument,  and  to  which  the  discussion  by  the 
court  was  mainly  directed,  was  that  of  the  right  to  terminate  the 
bailment  without  demand  of  the  balance  due  upon  the  conditional 
purchase;  the  right  of  entry  upon  the  plaintiff's  close  being  considered 
only  incidentally. 

A  majority  of  the  court  are  of  opinion  that  the  facts  reported  in  this 
case  are  not  sufficient  to  sustain  the  justification  relied  on  by  the  de- 
fendant, and  that  the  instructions  upon  that  point  were  correct.  If 
the  defendant  established  his  title  to  the  property  taken  away,  he  would 
of  course  be  liable  only  for  such  injury  as  he  did  to  the  plaintiff's  house. 
But  no  question  appears  to  be  raised  as  to  the  measure  of  damages,  and 
we  are  to  presume  that  proper  instructions  upon  that  point  were  given. 

Exceptions  overruled. 


SALISBURY  V.   GREEN. 
Supreme  Court  of  Rhode  Island,  1892. 

[Reported  17  R.  I.  758.] 

Per  Curiam.  At  the  trial  of  this  case  in  the  Court  of  Common  Pleas, 
the  plaintiff  requested  the  court  to  charge  the  jury  "  that,  if  the  de- 
fendant entered  upon  the  premises  of  the  plaintiff  without  the  permis- 


770  VINCENT   V.   LAKE   ERIE    TRANSPORTATION   CO.       [CHAP.  V. 

sion  of  the  plaintiff,  then  the  plaintiff  is  entitled  to  a  verdict."  The 
court  refused  this  request  and  charged  the  jury  "that  the  defendant 
had  a  right  to  enter  upon  the  plaintiff's  premises  to  get  possession  of 
and  recover  his  property,  using  no  more  force  than  was  necessary,  and 
committing  no  breach  of  the  peace."  We  think  this  was  error.  The 
horse  in  question  was,  and  for  some  time  previous  had  been,  in  the  peace- 
able possession  of  the  plaintiff,  under  a  claim  of  right,  and  hence  the 
defendant,  although  claiming  that  the  horse  was  his,  was  not  war- 
ranted in  entering  upon  the  plaintiff's  premises  without  his  permission, 
and  taking  forcible  possession  thereof,  against  the  will  of  the  plaintiff. 
For,  even  if  the  defendant  was  in  fact  the  legal  owner  of  the  horse, 
coupled  with  a  present  right  of  possession,  that  alone  did  not  justify 
him  in  a  breach  of  the  plaintiff's  close.  If  the  horse  had  been  stolen  or 
otherwise  illegally  taken  from  the  defendant,  it  is  stating  it  within  the 
established  rule  to  hold  that  he  would  have  a  right  to  pursue  and  re- 
take it  wherever  it  might  be  found,  provided  he  could  do  so  without  a 
breach  of  the  peace.  See  Cooley  on  Torts,  50,  Tit.  Recaption  or 
Reprisal.  In  this  case,  however,  it  appears  that  the  defendant,  some 
time  previous  to  the  occurrence  in  question,  had  delivered  possession 
of  said  horse  to  one  Whitfield  Dyer,  under  an  agreement  to  sell  it  to 
him,  and  that  said  Dyer's  father  had  exchanged  said  horse  for  another 
with  a  third  person,  from  whom  the  plaintiff  bought  it.  The  wrongful 
taking  of  the  property  from  the  possession  of  the  owner,  therefore, 
together  with  the  fresh  pursuit  which  must  appear  in  order  to  warrant 
the  recaption  thereof  by  force,  was  not  shown  in  this  case.  See  Kirby 
V.  Foster,  17  R.  I.  437;  McLeod  v.  Jones,  105  Mass.  403.  As  there 
must.be  a  new  trial  of  the  case,  for  the  reason  above  given,  it  becomes 
unnecessary  for  us  to  decide  whether  or  not  the  verdict  was  against  the 
evidence. 

Petition  for  new  trial  granted. 


VINCENT  V.  LAKE  ERIE  TRANSPORTATION  CO. 
Supreme  Court  of  Minnesota,  1910. 

[Reported  109  Minn.  456.] 

O'Brien,  J.  The  steamship  Reynolds,  owned  by  the  defendant,  was 
for  the  purpose  of  discharging  her  cargo  on  November  27,  1905,  moored 
to  plaintiffs'  dock  in  Duluth.  While  the  unloading  of  the  boat  was 
taking  place  a  storm  from  the  northeast  developed,  which  at  about  ten 
o'clock  p.  M.,  when  the  unloading  was  completed,  had  so  grown  in 
\'iolence  that  the  wind  was  then  moving  at  fifty  miles  per  hour  and 
continued  to  increase  during  the  night.  There  is  some  evidence  that 
one,  and  perhaps  two,  boats  were  able  to  enter  the  harbor  that  night, 
but  it  is  plain  that  navigation  was  practically  suspended  from  the 


SECT.  III.]      VINCENT   V.    LAKE    ERIE    TRANSPORTATION   CO.  771 

hour  mentioned  until  the  morning  of  the  twenty-ninth,  when  the 
storm  abated,  and  during  that  time  no  master  would  have  been  jus- 
tified in  attempting  to  navigate  his  vessel,  if  he  could  avoid  doing 
so.  After  the  discharge  of  the  cargo  the  Reynolds  signaled  for  a 
tug  to  tow  her  from  the  dock,  but  none  could  be  obtained  because  of 
the  severity  of  the  storm.  If  the  lines  holding  the  ship  to  the  dock 
had  been  cast  off,  she  would  doubtless  have  drifted  away;  but,  in- 
stead, the  lines  were  kept  fast,  and  as  soon  as  one  parted  or  chafed 
it  was  replaced,  sometimes  with  a  larger  one.  The  vessel  lay  upon 
the  outside  of  the  dock,  her  bow  to  the  east,  the  wind  and  waves 
striking  her  starboard  quarter  with  such  force  that  she  was  constantly 
being  lifted  and  thrown  against  the  dock,  resulting  in  its  damage,  as 
found  by  the  jury,  to  the  amount  of  $500. 

We  are  satisfied  that  the  character  of  the  storm  was  such  that  it 
would  have  been  highly  imprudent  for  the  master  of  the  Reynolds  to 
have  attempted  to  leave  the  dock  or  to  have  permitted  his  vessel  to 
drift  away  from  it.  One  witness  testified  upon  the  trial  that  the  vessel 
could  have  been  warped  into  a  slip,  and  that,  if  the  attempt  to  bring 
the  ship  into  the  slip  had  failed,  the  worst  that  could  have  happened 
would  be  that  the  vessel  would  have  been  blown  ashore  upon  a  soft 
and  muddy  bank.  The  witness  was  not  present  in  Duluth  at  the  time 
of  the  storm,  and,  while  he  may  have  been  right  in  his  conclusions, 
those  in  charge  of  the  dock  and  the  vessel  at  the  time  of  the  storm 
were  not  required  to  use  the  highest  human  intelligence,  nor  were 
they  required  to  resort  to  every  possible  experiment  which  could  be 
suggested  for  the  preservation  of  their  property.  Nothing  more  was 
demanded  of  them  than  ordinary  prudence  and  care,  and  the  record 
in  this  case  fully  sustains  the  contention  of  the  appellant  that,  in 
holding  the  vessel  fast  to  the  dock,  those  in  charge  of  her  exercised 
good  judgment  and  prudent  seamanship. 

It  is  claimed  by  the  respondent  that  it  was  negligence  to  moor  the 
boat  at  an  exposed  part  of  the  wharf,  and  to  continue  in  that  position 
after  it  became  apparent  that  the  storm  was  to  be  more  than  usually 
severe.  We  do  not  agree  with  this  position.  The  part  of  the  wharf 
where  the  vessel  was  moored  appears  to  have  been  commonly  used 
for  that  purpose.  It  was  situated  within  the  harbor  at  Duluth,  and 
must,  we  think,  be  considered  a  proper  and  safe  place,  and  would 
undoubtedly  have  been  such  during  what  would  be  considered  a  very 
severe  storm.  The  storm  which  made  it  unsafe  was  one  which  sur- 
passed in  violence  any  which  might  have  reasonably  been  anticipated. 

The  appellant  contends  by  ample  assignments  of  error  that,  because 
its  conduct  during  the  storm  was  rendered  necessary  by,  prudence  and 
good  seamanship  under  conditions  over  which  it  had  no  control,  it 
cannot  be  held  liable  for  any  injury  resulting  to  the  property  of  others, 
and  claims  that  the  jury  should  have  been  so  instructed.  An  analysis 
of  the  charge  given  by  the  trial  court  is  not  necessary,  as  in  our  opinion 


772  VINCENT   V.    LAKE   ERIE   TRANSPORTATION   CO.       [CHAP.  V. 

the  only  question  for  the  jury  was  the  amount  of  damages  which  the 
plaintiffs  were  entitled  to  recover,  and  no  complaint  is  made  upon 
that  score. 

The  situation  was  one  in  which  the  ordinary  rules  regulating  prop- 
erty rights  were  suspended  by  forces  beyond  human  control,  and  if, 
without  the  direct  intervention  of  some  act  by  the  one  sought  to  be 
held  liable,  the  property  of  another  was  injured,  such  injury  must 
be  attributed  to  the  act  of  God,  and  not  to  the  wrongful  act  of  the 
person  sought  to  be  charged.  If  during  the  storm  the  Reynolds  had 
entered  the  harbor,  and  while  there  had  become  disabled  and  been 
thrown  against  the  plaintiffs'  dock,  the  plaintiffs  could  not  have  recov- 
ered. Again,  if  while  attempting  to  hold  fast  to  the  dock  the  lines 
had  parted,  without  any  negligence,  and  the  vessel  carried  against 
some  other  boat  or  dock  in  the  harbor,  there  would  be  no  liability  upon 
her  owner.  But  here  those  in  charge  of  the  vessel  deliberately  and  by 
their  direct  efforts  held  her  in  such  a  position  that  the  damage  to  the 
dock  resulted,  and,  having  thus  preserved  the  ship  at  the  expense 
of  the  dock,  it  seems  to  us  that  her  owners  are  responsible  to  the  dock 
owners  to  the  extent  of  the  injury  inflicted. 

In  Dupee  v.  Flatau,  100  Minn.  299,  111  N.  W.  1,  8  L.  R.  A  (N. 
S.)  485,  this  court  held  that  where  the  plaintiff,  while  lawfully  in 
the  defendants'  house,  became  so  ill  that  he  was  incapable  of  traveling 
with  safety,  the  defendants  were  responsible  to  him  in  damages  for 
compelling  him  to  leave  the  premises.  If,  however,  the  owner  of  the 
premises  had  furnished  the  traveler  with  proper  accommodations  and 
medical  attendance,  would  he  have  been  able  to  defeat  an  action 
brought  against  him  for  their  reasonable  worth? 

In  Ploof  V.  Putnam  (Vt.)  71  Atl.  188,  20  L.  R.  A.  (N.  S.)  152, 
the  Supreme  Court  of  Vermont  held  that  where,  under  stress  of 
weather,  a  vessel  was  without  permission  moored  to  a  private  dock  at 
an  island  in  Lake  Champlain  owned  by  the  defendant,  the  plaintiff  was 
not  guilty  of  trespass,  and  that  the  defendant  was  responsible  in  dam- 
ages because  his  representative  upon  the  island  unmoored  the  vessel, 
permitting  it  to  drift  upon  the  shore,  with  resultant  injuries  to  it. 
If,  in  that  case,  the  vessel  had  been  permitted  to  remain,  and  the  dock 
had  suffered  an  injury,  we  believe  the  shipowner  would  have  been 
held  liable  for  the  injury  done. 

Theologians  hold  that  a  starving  man  may,  without  moral  guilt, 
take  what  is  necessary  to  sustain  life;  but  it  could  hardly  be  said 
that  the  obligation  would  not  be  upon  such  person  to  pay  the  value  of 
the  property  so  taken  when  he  became  able  to  do  so.  And  so  public 
necessity,  in  times  of  war  or  peace,  may  require  the  taking  of  private 
property  for  public  purposes;  but  under  our  system  of  jurisprudence 
compensation  must  be  made. 

Let  us  imagine  in  this  case  that  for  the  better  mooring  of  the  vessel 
those  in  charge  of  her  had  appropriated  a  valuable  cable  lying  upon 


SECT.  III.]      VINCENT   V.   LAKE   ERIE    TRANSPORTATION   CO.  773 

the  dock.  No  matter  how  justifiable  such  appropriation  might  have 
been,  it  would  not  be  claimed  that,  because  of  the  overwhelming  neces- 
sity of  the  situation,  the  owner  of  the  cable  could  not  recover  its  value. 

This  is  not  a  case  where  life  or  property  was  menaced  by  any  object 
or  thing  belonging  to  the  plaintiffs,  the  destruction  of  which  became 
necessary  to  prevent  the  threatened  disaster.  Nor  is  it  a  case  where, 
because  of  the  act  of  God,  or  unavoidable  accident,  the  infliction  of 
the  injury  was  beyond  the  control  of  the  defendant,  but  is  one  where 
the  defendant  prudently  and  advisedly  availed  itself  of  the  plaintiffs' 
property  for  the  purpose  of  preserving  its  own  more  valuable  prop- 
erty, and  tlie  plaintiffs  are  entitled  to  compensation  for  the  injury 
done. 

Order  affirmed. 

Lewis,  J.  (dissenting).  I  dissent.  It  was  assumed  on  the  trial 
before  the  lower  court  that  appellant's  liability  depended  on  whether 
the  master  of  the  ship  might,  in  the  exercise  of  reasonable  care,  have 
sought  a  place  of  safety  before  the  storm  made  it  impossible  to  leave 
the  dock.  The  majority  opinion  assumes  that  the  evidence  is  con- 
clusive that  appellant  moored  its  boat  at  respondents'  dock  pursuant 
to  contract,  and  that  the  vessel  was  lawfully  in  position  at  the  time  the 
additional  cables  were  fastened  to  the  dock,  and  the  reasoning  of  the 
opinion  is  that,  because  appellant  made  use  of  the  stronger  cables  to 
hold  the  boat  in  position,  it  became  liable  under  the  rule  that  it  had 
voluntarily  made  use  of  the  property  of  another  for  the  purpose  of 
saving  its  own. 

In  my  judgment,  if  the  boat  was  lawfully  in  position  at  the  time 
the  storm  broke,  and  the  master  could  not,  in  the  exercise  of  due  care, 
have  left  that  position  without  subjecting  his  vessel  to  the  hazards  of 
the  storm,  then  the  damage  to  the  dock,  caused  by  the  pounding  of  the 
boat,  was  the  result  of  an  inevitable  accident.  If  the  master  was 
in  the  exercise  of  due  care,  he  was  not  at  fault.  The  reasoning  of  the 
opinion  admits  that  if  the  ropes,  or  cables,  first  attached  to  the  dock 
had  not  parted,  or  if,  in  the  first  instance,  the  master  had  used  the 
stronger  cables,  there  would  be  no  liability.  If  the  master  could  not, 
in  the  exercise  of  reasonable  care,  have  anticipated  the  severity  of  the 
storm  and  sought  a  place  of  safety  before  it  became  impossible,  why 
should  he  be  required  to  anticipate  the  severity  of  the  storm,  and,  in 
the  first  instance,  use  the  stronger  cables? 

I  am  of  the  opinion  that  one  who  constructs  a  dock  to  the  navi- 
gable line  of  waters,  and  enters  into  contractual  relations  with  the 
owner  of  a  vessel  to  moor  the  same,  takes  the  risk  of  damage  to  his 
dock  by  a  boat  caught  there  by  a  storm,  which  event  could  not  have 
been  avoided  in  the  exercise  of  due  care,  and  further,  that  the  legal 
status  of  the  parties  in  such  a  case  is  not  changed  by  renewal  of  cables 
to  keep  the  boat  from  being  cast  adrift  at  the  mercy  of  the  tempest. 

Jaggard,  J.     I  concur  with  Lewis,  J. 


774  OILMAN   V.   EMERY.  [CHAP.  V. 


OILMAN  V.  EMERY. 
Supreme  Court  of  Maine,  1867. 

[Reported  54  Me.  460.] 

On  Exceptions. 

Trespass  to  recover  damages  to  plaintiff's  horse  and  wagon. 

It  appeared  that  the  plaintiff  started  with  his  brother  to  drive  two 
heifers,  from  his  stable,  in  Waterville,  to  another  town.  As  they 
were  passing  defendant's  premises,  leading  plaintiff's  horse  attached 
to  his  wagon,  and  driving  the  heifers,  one  of  the  latter  turned  and  ran 
back.  Whereupon,  the  plaintiff  hitched  his  horse  to  a  shade  tree, 
twenty-two  inches  in  diameter,  standing  upon  the  defendant's  prem- 
ises, but  within  the  limits  of  the  highway,  and  went  back  for  his 
heifer.  The  defendant  seeing  plaintiff's  horse  so  hitched,  removed  him 
and  hitched  him  to  a  post  a  few  feet  from  the  tree.  When  the  plain- 
tiff was  returning  for  his  horse,  some  twenty  minutes  afterwards,  he 
saw  his  horse  running  through  the  streets,  with  halter  dragging,  and 
the  wagon  broken.  There  was  no  evidence  as  to  the  precise  manner  in 
which  the  defendant  hitched  the  horse,  or  as  to  how  he  was  freed  from 
the  post. 

Plaintiff  moved  to  amend  by  adding  a  count  alleging  a  wrongful 
taking  by  the  defendant,  a  negligent  use  and  control  of  said  horse  and 
wagon,  whereby  they  became  injured  and  unfit  for  use.  The  presiding 
judge  overruled  the  motion,  and  ordered  a  nonsuit,  and  the  plaintiff 
alleged  exceptions. 

Walton,  J.  Travelers  have  no  right  to  hitch  horses  to  shade  trees. 
It  is  well  known  that  most  horses  have  a  propensity  to  gnaw  whatever 
they  are  hitched  to.  Hitching  posts  of  the  hardest  wood  have  to  be 
capped  with  iron  or  they  are  soon  so  badly  gnawed  as  to  be  ruined. 
Too  many  beautiful  shade  trees,  planted  at  great  expense  and  watched 
for  many  years  with  anxious  care,  have  been  destroyed  by  having 
horses  hitched  to  them,  not  to  know  that  the  practice  is  exceedingly 
dangerous.  When,  therefore,  the  owner  of  a  shade  tree  finds  a  horse 
hitched  to  it,  he  may  immediately  remove  him  to  a  place  of  safety, 
and  such  removal  will  not  be  a  trespass. 

In  this  case  the  defendant  found  a  horse  hitched  to  one  of  his  shade 
trees.  He  unhitched  him  and  led  him  a  few  feet  and  hitched  him  to  a 
post  set  in  the  ground  on  purpose  to  hitch  horses  to.  This  was  not  an 
act  of  trespass,  and  probably  the  plaintiff  would  not  have  complained 
of  it,  but  for  the  fact  that  his  horse  afterwards  broke  loose  from  the 
post  and  ran  away  and  broke  his  wagon.  But  there  is  no  evidence  that 
the  defendant  did  not  use  ordinary  care  in  hitching  the  horse,  and  the 
plaintiff's  writ  does  not  charge  him  with  negligence;  it  simply  charges 


SECT.  III.]  NESBETT   V.   WILBUR.  775 

him  with  trespass  vi  et  armis,  in  taking  and  carrying  away  the  horse, 
buggy,  etc. 

The  presiding  judge,  being  of  opinion  that  the  action  could  not  be 
maintained,  ordered  a  nonsuit,  to  which  the  plaintiff  excepted.  We  can- 
not doubt  that  the  nonsuit  was  rightly  ordered. 

The  plaintiff  moved  for  leave  to  amend  his  declaration  by  insert- 
ing a  new  count  charging  the  defendant  with  negligence  in  not  hitch- 
ing the  horse  securely.  Leave  was  not  granted.  To  this  refusal  the 
plaintiff  also  excepted.  Exceptions  do  not  lie  to  the  refusal  of  a 
judge  to  allow  an  amendment,  unless  the  bill  of  exceptions  show  that 
he  ruled,  as  matter  of  law,  that  the  proposed  amendment  was  one 
which  could  not  be  allowed.  The  bill  of  exceptions  does  not  show  that 
he  so  ruled  in  this  case.  It  is  to  be  presumed  therefore  that  he  ruled, 
as  matter  of  discretion,  not  to  allow  the  amendment,  because  under 
the  circumstances  justice  would  not  in  his  opinion  be  thereby  promoted. 
To  such  a  ruling,  as  before  stated,  exceptions  do  not  lie;  and  it  is  not 
important  to  determine  whether  the  proposed  amendment  was  one 
which  could  legally  be  made  or  not. 

Exceptions  overruled. 

Appleton,  C.  J.,  Cutting,  Dickerson,  Barrows,  and  Tapley, 
JJ.,  concurred. 


NESBETT  V.   WILBUR. 
Supreme  Judicial  Court  of  Massachusetts,  1900. 

[Reported  111  Mass.  200.] 

Holmes,  C.  J.  This  is  an  action  for  killing  a  dog.  The  judge  before 
whom  the  case  was  tried  found  that  the  dog  was  engaged  in  killing  the 
defendant's  hens,  that  the  defendant  rightly  believed  that  there  was 
no  other  way  to  save  them  than  to  kill  the  dog,  and  that  he  was  justified 
in  doing  so.  The  plaintiff  excepted  to  a  refusal  to  rule  that  our  stat- 
utes took  away  the  common  law,  and  that,  not  having  complied  with 
the  statutes,  the  defendant  was  liable. 

The  provision  in  Pub.  Sts.  c.  102,  §  94,  does  not  take  away  the  rights 
of  the  defendant  at  common  law.  That  section  gives  a  right  to  "  any 
person"  to  kill  a  dog  found  out  of  the  inclosure  or  immediate  care  of 
its  owner,  worrying  neat  cattle,  sheep,  or  lambs.  Its  object  is  "to 
rid  society  of  a  nuisance  by  killing  the  dog."  Cummings  v.  Perham,  1 
Met.  555^  557.  Blair  v.  Forehand,  100  Mass.  136,  143.  It  does  not 
touch  the  rights  of  an  owner  in  defense  of  his  property.  Our  legis- 
lation as  a  whole  discloses  no  scheme  of  a  nature  to  exclude  those 
rights. 


776  GOODWIN    V.    AYERY.  [CHAP.  V. 

Taken  strictly,  the  exceptions  do  not  open  a  question  concerning  the 
common  law,  nor  is  one  argued.  We  need  say  no  more  than  that  the 
finding  for  the  defendant  was  justified.  No  doubt  such  a  justification 
as  that  relied  on  depends  upon  a  number  of  variable  facts:  the  immi- 
nence and  nature  of  the  danger,  the  kind  of  property  in  peril,  from 
whom  or  what  the  danger  proceeds,  the  relative  importance  of  the 
harm  threatened  and  that  which  is  done  in  defense.  Compare,  for 
instance,  Clark  v.  Keliher,  107  Mass.  406,  with  the  cases  cited  below. 
But  these  considerations  and  comparisons  are  all  eliminated  by  the 
judge's  finding  that  the  defendant  was  justified.  There  is  nothing 
which  enables  us  to  say  or  leads  us  to  think  that  he  was  wrong.  Wad- 
hurst  V.  Damme,  Cro.  Jac.  45.  Wright  v.  Ramscot,  1  Wms.  Saund.  84. 
Barrington  y.  Turner,  3  Lev.  28.  Janson  r.  Brown,  1  Camp.  41.  Liver- 
more  V.  Batchelder,  141  Mass.  179.  Leonard  v.  W'ilkins,  9  Johns.  233. 
Brill  V.  Flagler,  23  Wend.  354.  Aldrich  v.  Wright,  53  N.  H.  398.  Hub- 
bard V.  Preston,  90  Mich.  221. 

Exceptions  overruled. 


GOODWIN  V.  AVERY. 
Supreme  Court  of  Errors,  Connecticut,  1858. 

[Reported  26  Conn.  585.] 

Trespass,  for  an  assault  and  battery,  tried  to  the  jury  on  the  general 
issue. 

The  plaintiff  and  defendant  were  hack-drivers.  A  Mr.  Prince,  in 
making  preparations  for  the  funeral  of  a  child,  had  employed  one 
Potter  to  superintend  the  arrangements  for  the  funeral  and  to  procure 
the  necessary  carriages,  and  Potter,  in  pursuance  of  his  directions,  had 
engaged  the  defendant,  among  others,  to  attend  with  his  hack.  Pre- 
vious to  the  funeral,  a  brother  of  Mr.  Prince,  without  the  knowledge  of 
Potter,  had  engaged  the  plaintiff  to  attend  the  funeral  with  his  car- 
riage. The  plaintiff  and  defendant  both  attended  with  their  carriages, 
and  the  injuries  which  the  plaintiff  claimed  to  have  received,  were  the 
consequences  of  a  strife  between  them  to  obtain  a  certain  position  in  the 
funeral  procession. 

The  defendant  offered  evidence  to  prove,  that  he  arrived  at  the 
funeral  in  his  carriage  previous  to  the  arrival  of  the  plaintiff,  and  took 
a  position  in  the  public  street  in  front  of  the  house  where  the  funeral 
was  to  be  held;  that  a  person  by  the  name  of  Licet,  the  driver  of  an- 
other carriage,  took  a  position  behind  the  defendant;  that  while  the 
defendant  and  Licet  were  thus  arranged  in  line  in  the  procession  that 
was  to  be  formed.  Potter  gave  directions  to  the  defendant  to  drive 
into  and  let  Licet  take  his  place,  and  gave  directions  to  the  defendant 


SECT.  III.]  GOODWIN   V.   AYERY.  777 

to  take  the  place  next  behind  Licet;  that  thereupon  the  defendant 
turned  his  carriage  round  for  the  purpose,  and  while  he  was  thus  turn- 
ing, the  plaintiff  arrived  and  occupied  the  place  with  his  carriage,  — 
Potter  at  this  time  having  gone  into  the  house;  that  thereupon  the 
defendant  informed  the  plaintiff  that  Potter,  who  had  charge  of  the 
funeral  arrangements,  had  assigned  to  him  the  place  the  plaintiff  then 
occupied,  and  requested  him  to  back  his  team  and  let  him  take  the 
place;  that  the  plaintiff  refused  to  leave  the  place  or  let  the  defendant 
occupy  the  same;  that  the  defendant's  carriage  was  at  this  time  in  an 
angling  position  with  a  line  running  with  the  street,  with  the  heads  of 
his  horses  in  advance  of  the  heads  of  the  plaintiff's  horses,  and  near 
the  back  of  Licet's  carriage;  that  while  in  this  position  the  defendant 
was  standing  by  the  heads  of  his  horses,  holding  them  by  the  bits,  and 
the  plaintiff  was  sitting  in  his  carriage,  when  the  defendant  requested 
Licet,  without  the  knowledge  of  the  plaintiff,  to  drive  his  carriage  for- 
ward; that  Licet  drove  forward,  and  the  defendant  caused  his  horses 
to  move  forward  at  the  same  instant  to  occupy  the  place  left  vacant; 
that  after  his  horses  began  to  move  forward  to  occupy  the  place,  the 
plaintiff  discovered  his  design  and  began  whipping  his,  the  plaintiff's, 
horses;  that  the  plaintiff's  horses  started  forward,  and  the  defendant 
being  at  the  time  in  advance  of  them  with  his  own  horses,  the  horses 
of  the  plaintiff  struck  the  defendant,  and  the  pole  of  the  plaintiff's 
carriage  hit  him  in  the  back,  hurting  him  considerably;  that  thereupon 
the  defendant  took  the  horses  of  the  plaintiff  by  the  bridle  to  keep 
them  from  being  driven  by  the  plaintiff  upon  him;  that  thereupon  the 
plaintiff  commenced  beating  him  with  his  whip  over  the  head  and 
shoulders,  and  that  in  order  to  protect  himself  from  the  attack  of  the 
plaintiff,  he  committed  the  acts  of  which  the  plaintiff  complained,  doing 
no  more  than  was  reasonably  necessary,  under  the  circumstances,  for 
his  self-defense.  The  plaintiff  offered  e\ndence  to  prove,  that  after  he 
had  occupied  the  place  behind  Licet  with  his  carriage,  and  when  the 
defendant  requested  him  to  leave  the  place  and  let  him  occupy  the 
same,  he  informed  the  defendant  that  he  would  leave  the  place  if 
Potter  should  so  direct;  and  that  when  Licet  began  to  move  his  car- 
riage forward,  he  caused  his  own  horses  to  move  forward  at  the  same 
time,  and  that  the  defendant  thereupon  seized  his,  the  plaintiff's, 
horses  by  the  bridle  and  forced  them  back,  to  prevent  the  plaintiff  from 
occupying  the  place  left  vacant  by  Licet ;  and  that  if  he  struck  the  de- 
fendant with  his  whip,  it  was  unintentional.  Potter  did  not  know  that 
the  plaintiff  had  been  engaged,  or  had  arrived  to  attend  the  funeral, 
until  after  the  affray. 

LTpon  the  various  claims  of  the  parties  the  court  charged  tlie  jury 
substantially  as  follows :  —  "It  seems  admitted  in  this  case  that  an 
assault  and  battery  was  committed  by  the  defendant  upon  the  plain- 
tiff, for  which  the  defendant  would  be  responsible  in  damages,  unless 
justified  upon  the  principle  of  self-detense.     In  such  cases  it  becomes 


778  GOODWIN   V.   AVERY.  [CHAP.  V. 

important  to  ascertain,  if  we  can,  which  party  was  in  the  right,  and 
which  in  the  wrong,  in  the  commencement  of  the  affray.  The  parents 
of  the  deceased  child  had  the  right  to  a  reasonable  occupancy  of  the 
public  street  in  front  of  their  house,  for  the  purpose  of  forming  the 
funeral  procession  of  their  child.  The  use  and  occupancy  of  the  car- 
riages they  had  employed  being  theirs  for  the  occasion,  they  conse- 
quently had  the  right  to  direct  in  what  order  those  carriages  should  be 
placed  in  the  procession;  and  the  drivers  of  the  carriages,  being  them- 
selves in  their  employ,  were  under  obligations  to  conform  to  their 
directions.  The  parents,  having  thus  the  control  of  the  carriages  they 
had  employed,  might  engage  the  services  of  another  (as  is  usual  on 
such  occasions),  to  make  those  directions  for  them;  and  the  directions 
of  the  person  thus  employed  would  be  considered  as  the  directions  of 
the  parents.  It  is  admitted  in  this  case  that  Potter  was  thus  employed, 
and  the  fact  was  known  by  the  plaintiff  and  the  defendant  previously 
to  the  affray.  You  will  then  inquire,  in  the  first  place,  whether  Potter 
had  directed  the  defendant  to  take  the  place  in  the  procession  next 
after  Licet.  If  he  had  so  directed,  and  the  defendant  informed  the 
plaintiff  to  that  effect,  it  was  the  duty  of  the  plaintiff  to  have  allowed 
the  defendant  to  occupy  the  place;  and  when  Licet  moved  his  carriage 
forward,  and  the  defendant  proceeded  to  occupy  the  place  thus  left 
vacant,  if  the  plaintiff  drove  his  carriage  forward  to  prevent  the  defend- 
ant from  thus  occupying  the  place,  he  was  in  the  WTong,  and  I  think 
the  defendant  would  be  justified  in  gently  taking  the  horses  of  the 
plaintiff  by  the  bridle  and  stopping  them,  if  he  did  no  more;  and  if  the 
plaintiff  then  proceeded  to  inflict  an  assault  and  battery  upon  the  de- 
fendant, the  defendant  might  repel  the  assault,  doing  no  more  than  was 
reasonably  necessary,  under  the  circumstances,  to  defend  himself.  If 
the  defendant  carried  his  defense  further  than  was  reasonably  neces- 
sary under  the  circumstances,  he  would  be  liable  for  the  excess.  If 
you  find  that  Potter  had  not  directed  the  defendant  to  occupy  the  place 
next  behind  Licet,  then,  in  order  to  ascertain  which  party  was  in  the 
wrong  in  the  commencement  of  the  aflfray,  you  will  consider  which  party 
first  proceeded  to  violence.  L'nder  ordinary  circumstances  the  right 
of  one  person  to  the  public  highway,  for  public  highway  purposes,  is  as 
good  as  that  of  another.  The  highway  is  for  the  public  —  for  one  and 
all.  But  when  one  person  occupies  a  particular  part  of  the  highway 
for  highway  purposes,  he  has  an  exclusive  right  to  that  part  of  the 
highway  a  reasonable  length  of  time,  under  all  the  circumstances. 
Again,  under  ordinary  circumstances,  if  two  persons  in  carriages  seek 
to  occupy  a  part  of  the  highway  which,  as  yet,  is  unoccupied  by  either, 
the  party  who  can  peaceably  occupy  the  place  first,  will  be  entitled  to 
it  for  the  time  being;  but  he  would  not  be  justified  in  resorting  to  vio- 
lence, either  upon  the  person  or  property  of  the  other,  in  order  to  occupy 
the  place  first.  The  one  would  not  be  justified  in  driving  his  horses 
upon  the  other,  in  order  to  occupy  the  place  first;   neither  would  the 


SECT.  III.]  GOODWIN    V.    AVERY.  779 

other  be  justified  in  seizing  the  horses  of  the  first  and  forcing  them 
back  for  the  same  purpose.  The  party,  under  such  circumstances,  who 
first  resorted  to  force  and  violence,  would  be  in  the  wrong,  and  that 
violence  might  be  lawfully  resisted  by  the  other,  doing  no  more  than 
was  reasonably  necessary,  under  the  circumstances,  to  defend  himself; 
while  the  other,  being  in  the  wrong,  would  be  responsible  in  damages  for 
whatever  injury  he  might  occasion,  while  his  adversary  kept  within 
the  proper  limits  of  self-defense." 

The  jury  returned  a  verdict  for  the  defendant,  and  the  plaintiff 
moved  for  a  new  trial  for  error  in  the  charge  of  the  court. 

Storks,  C.  J.  No  complaint  is  made  of  the  latter  part  of  the  charge 
below,  which  was  founded  on  the  supposition  that,  at  the  time  of  the 
affray  between  the  parties,  the  part  of  the  highway  where  it  occurred 
was  not  in  the  occupation  of  any  person,  and  that  the  parties  were 
struggling  for  the  possession  of  it.  The  argument  before  us  has  pro- 
ceeded on  the  assumption  that  Mr.  Prince  was  then,  by  his  servants, 
the  drivers  of  the  carriages  who  were  engaged  by  him  to  attend  the 
funeral  of  his  child,  in  the  occupancy  of  the  place,  for  the  purpose  of 
forming  the  procession  on  that  occasion;  and  that  the  order  in  which 
the  carriages  should  be  formed  in  the  procession  was  by  him  confided  to 
Mr.  Potter,  who,  it  is  admitted,  became  thereby  his  agent  for  that 
purpose,  and  whose  directions  in  respect  to  it  were  therefore  in  law 
those  of  Mr.  Prince  himself.  The  latter  being  thus  in  the  possession  of 
that  part  of  the  highway,  for  what  was  clearly  a  lawful  purpose,  had  a 
right,  either  personally  or  through  Mr.  Potter,  to  direct  as  to  the 
places  in  the  procession  which  the  carriages  engaged  by  him  should 
occupy,  and  the  drivers  therefore  had  a  right  to  follow  those  directions ; 
and  if,  in  conforming  or  endeavoring  to  conform  to  them,  they  were 
prevented  from  doing  so  or  obstructed  by  the  plaintiff  (who  was  not  in 
the  employ  of  Mr.  Prince  or  acting  by  his  direction,  and  therefore  had 
no  right  to  interfere  with  him  or  his  servants  in  these  funeral  arrange- 
ments), they  had  a  right  to  oppose  such  acts  of  the  plaintiff,  or  to  de- 
fend themselves  against  any  injury  from  him,  by  as  much  force  as  was 
necessary  in  order  to  enable  themselves  to  occupy  the  place  in  the  pro- 
cession assigned  to  them.  The  proper  inquiries  on  this  part  of  the 
case,  were  —  first,  whether  the  defendant  was  directed  by  Potter  to 
occupy  the  place,  and  was,  while  occup\ang  or  endeavoring  to  occupy 
it,  obstructed  by  the  plaintiff,  —  and  secondly,  if  he  was  so  disturbed, 
whether  he  used  unnecessary  force  in  obtaining  or  keeping  the  place. 
And  these  questions  were  submitted  by  the  court  below,  and  with 
great  clearness,  to  the  jury.  In  one  respect,  perhaps,  the  charge  was 
over-favorable  to  the  plaintiff.  It  required  the  defendant  to  prove, 
not  only  that  Potter  had  directed  the  defendant  to  occupy  the  place 
for  which  the  parties  were  struggling,  but  also  that  the  defendant  had 
informed  the  plaintiff  to  that  effect.  It  is  questionable  whether  the 
plaintiff  had  strictly  any  right  to  such  information  from  the  defendant; 


780  BROWN   V.    KENDALL,  [CHAP.  V. 

for  if  the  latter  had,  by  Potter's  directions,  a  right  to  take  that  place, 
it  would  seem  that  he  could  not  lawfully  be  deprived  of  it  by  the  plain- 
tiff, whether  it  was  made  known  to  him  by  the  defendant  or  not.  This 
point,  however,  has  not  been  made,  and  it  is  unnecessary  to  notice  it 
further.  We  discover  no  error  in  the  charge  of  which  the  plaintiff  can 
complain,  and  therefore  do  not  advise  a  new  trial. 
In  this  opinion  the  other  judges  concurred. 

New  trial  not  advised. 


SECTION   IV. 

Protection  from  Consequences  of  Permitted  Acts. 

BROWN  V.  KENDALL. 
Supreme  Judicial  Court,  1850. 

[Reported  6  Cit^h.  292.] 

This  was  an  action  of  trespass  for  assault  and  battery,  originally 
commenced  against  George  K.  Kendall,  the  defendant,  who  died  pend- 
ing the  suit,  and  his  executrix  was  summoned  in. 

It  appeared  in  evidence,  on  the  trial,  which  was  before  Wells,  C.  J., 
in  the  court  of  common  pleas,  that  two  dogs,  belonging  to  the  plaintiff 
and  the  defendant,  respectively,  were  fighting  in  the  presence  of  their 
masters ;  that  the  defendant  took  a  stick  about  four  feet  long,  and  com- 
menced beating  the  dogs  in  order  to  separate  them;  that  the  plaintiff 
was  looking  on,  at  the  distance  of  about  a  rod,  and  that  he  advanced  a 
step  or  two  towards  the  dogs.  In  their  struggle,  the  dogs  approached  the 
place  where  the  plaintiff  was  standing.  The  defendant  retreated  back- 
wards from  before  the  dogs,  striking  them  as  he  retreated;  and  as  he 
approached  the  plaintiff,  with  his  back  towards  liim,  in  raising  his 
stick  over  his  shoulder,  in  order  to  strike  the  dogs,  he  accidentally  hit 
the  plaintiff  in  the  eye,  inflicting  upon  him  a  severe  injury. 

Whether  it  was  necessary  or  proper  for  the  defendant  to  interfere  in 
the  fight  between  the  dogs ;  whether  the  interference,  if  called  for,  was 
in  a  proper  manner,  and  what  degree  of  care  was  exercised  by  each 
party  on  the  occasion;  were  the  subject  of  controversy  between  the 
parties,  upon  all  the  evidence  in  the  case,  of  which  the  foregoing  is  an 
outline. 

The  defendant  requested  the  judge  to  instruct  the  jury,  that  "if 
both  the  plaintiff  and  defendant  at  the  time  of  the  blow  were  using 
ordinary  care,  or  if  at  that  time  the  defendant  was  using  ordinary 
care  and  the  plaintiff  was  not,  or  if  at  that  time  both  plaintiff  and 


SECT.  IV.]  BROWN    V.    KENDALL.  781 

defendant  were  not  using  ordinary  care,  then  the  plaintiff  could  not 
recover." 

The  defendant  further  requested  the  judge  to  instruct  the  jury, 
that,  "  under  the  circumstances^  if  the  plaintiff  was  using  ordinary  care 
and  the  defendant  was  not,  the  plaintiff  could  not  recover,  and  that  the 
burden  of  proof  on  all  these  propositions  was  on  the  plaintiff." 

The  judge  declined  to  give  the  instructions,  as  above  requested,  but 
left  the  case  to  the  jury  under  the  following  instructions:  "If  the  de- 
fendant, in  beating  the  dogs,  was  doing  a  necessary  act,  or  one  which 
it  was  his  duty  under  the  circumstances  of  the  case  to  do,  and  was  doing 
it  in  a  proper  way ;  then  he  was  not  responsible  in  this  action,  provided 
he  was  using  ordinary  care  at  the  time  of  the  blow.  If  it  was  not  a 
necessary  act;  if  he  was  not  in  duty  bound  to  attempt  to  part  the  dogs, 
but  might  with  propriety  interfere  or  not  as  he  chose;  the  defendant 
was  responsible  for  the  consequences  of  the  blow,  unless  it  appeared 
that  he  was  in  the  exercise  of  extraordinary  care,  so  that  the  accident 
was  inevitable,  using  the  word  inevitable  not  in  a  strict  but  a  popular 
sense." 

"  If,  however,  the  plaintiff,  when  he  met  with  the  injury,  was  not  in 
the  exercise  of  ordinary  care,  he  cannot  recover,  and  this  rule  applies, 
whether  the  interference  of  the  defendant  in  the  fight  of  the  dogs  was 
necessary  or  not.  If  the  jury  believe,  that  it  was  the  duty  of  the  de- 
fendant to  interfere,  then  the  burden  of  proN'ing  negligence  on  the  part 
of  the  defendant,  and  ordinary  care  on  the  part  of  the  plaintiff,  is  on 
the  plaintiff.  If  the  jury  believe,  that  the  act  of  interference  in  the 
fight  was  unnecessary,  then  the  burden  of  pro\'ing  extraordinary  care 
on  the  part  of  the  defendant,  or  want  of  ordinary  care  on  the  part  of 
the  plaintiff,  is  on  defendant." 

The  jury  under  these  instructions  returned  a  verdict  for  the  plain- 
tiff;  whereupon  the  defendant  alleged  exceptions. 

Shaw%  C.  J.  This  is  an  action  of  trespass,  ri  ei  armis,  brought  by 
George  Brown  against  George  K.  Kendall,  for  an  assault  and  battery; 
and  the  original  defendant  having  died  pending  the  action,  his  execu- 
trix has  been  summoned  in.  The  rule  of  the  common  law,  by  which 
this  action  would  abate  by  the  death  of  either  party,  is  reversed  in  this 
commonwealth  l)y  statute,  which  provides  that  actions  of  trespass  for 
assault  and  battery  shall  survive.    Rev.  Sts.  c.  93,  §  7. 

The  facts  set  forth  in  the  bill  of  exceptions  preclude  the  supposi- 
tion, that  the  blow,  inflicted  by  the  hand  of  the  defendant  upon  the 
person  of  the  plaintiff,  was  intentional.  The  whole  case  proceeds  on 
the  assumption,  that  the  damage  sustained  by  the  plaintiff,  from  the 
stick  held  by  the  defendant,  was  inadvertent  and  unintentional ;  and 
the  case  involves  the  question  how  far,  and  under  what  qualifications, 
the  party  by  whose  unconscious  act  the  damage  was  done  is  responsible 
for  it.  We  use  the  term  "unintentional"  rather  than  involuntary,  be- 
cause in  some  of  the  cases,  it  is  stated,  that  the  act  of  holding  and  using 


782 


BEOWN   V.  KENDALL. 


[chap.  V, 


a  weapon  or  instrument,  the  movement  of  which  is  the  immediate  cause 
of  hurt  to  another,  is  a  voluntary  act,  although  its  particular  effect  in 
hitting  and  hurting  another  is  not  within  the  purpose  or  intention  of 
the  party  doing  the  act. 

It  appears  to  us,  that  some  of  the  confusion  in  the  cases  on  this  sub- 
ject has  grown  out  of  the  long-vexed  question,  under  the  rule  of  the 
common  law,  whether  a  party's  remedy,  where  he  has  one,  should  be 
sought  in  an  action  of  the  case,  or  of  trespass.  This  is  very  distinguish- 
able from  the  question,  whether  in  a  given  case,  any  action  will  lie. 
The  result  of  these  cases  is,  that  if  the  damage  complained  of  is  the 
immediate  effect  of  the  act  of  the  defendant,  trespass  vi  et  armis  lies; 
if  consequential  only,  and  not  immediate,  case  is  the  proper  remedy. 
Leame  v.  Bray,  3  East,  593;  Hugget  v.  Montgomery,  2  N.  R.  446,  Day's 
Ed.  and  notes. 

In  these  discussions,  it  is  frequently  stated  by  judges,  that  when  one 
receives  injury  from  the  direct  act  of  another,  trespass  will  lie.  But 
we  think  this  is  said  in  reference  to  the  question,  whether  trespass  and 
not  case  will  lie,  assuming  that  the  facts  are  such,  that  some  action  will 
lie.  These  dicta  are  no  authority,  we  think,  for  holding,  that  damage 
received  by  a  direct  act  of  force  from  another  will  be  sufficient  to  main- 
tain an  action  of  trespass,  whether  the  act  was  lawful  or  unlawful,  and 
neither  wilful,  intentional,  or  careless.  In  the  principal  case  cited, 
Leame  v.  Bray,  the  damage  arose  from  the  act  of  the  defendant,  in 
driving  on  the  wrong  side  of  the  road,  in  a  dark  night,  which  was 
clearly  negligent  if  not  unlawful.  In  the  course  of  the  argument  of 
that  case  (p.  595),  Lawrence,  J.,  said:  "There  certainly  are  cases  in 
the  books,  where,  the  injury  being  direct  and  immediate,  trespass  has 
been  holden  to  lie,  though  the  injury  was  not  intentional."  The  term 
"injury"  implies  something  more  than  damage;  but,  independently  of 
that  consideration,  the  proposition  may  be  true,  because  though  the 
injury  was  unintentional,  the  act  may  have  been  unlawful  or  negli- 
gent, and  the  cases  cited  by  him  are  perfectly  consistent  with  that  sup- 
position. So  the  same  learned  judge  in  the  same  case  says  (p.  597), 
"  No  doubt  trespass  lies  against  one  who  drives  a  carriage  against  an- 
other, whether  done  wilfully  or  not."  But  he  immediately  adds,  "  Sup- 
pose one  who  is  driving  a  carriage  is  negligently  and  heedlessly  looking 
about  him,  without  attending  to  the  road  when  persons  are  passing, 
and  thereby  runs  over  a  child  and  kills  him,  is  it  not  manslaughter? 
and  if  so,  it  must  be  trespass;  for  every  manslaughter  includes  tres- 
pass;"  showing  what  he  understood  by  a  case  not  wilful. 

We  think,  as  the  result  of  all  the  authorities,  the  rule  is  correctly 
stated  by  Mr.  Greenleaf,  that  the  plaintiff  must  come  prepared  with 
evidence  to  show  either  that  the  intention  was  unlawful,  or  that  the 
defendant  was  in  fault:  for  if  the  injury  was  unavoidable,  and  the  con- 
duct of  the  defendant  was  free  from  blame,  he  will  not  be  liable.  2 
Greenl.  Ev.,  §§  85  to  92;   Wakeman  v.  Robinson,  1  Bing.  213.    If.  in 


SECT.  IV.]  BKOWN   V.   KENDALL.  783 

the  prosecution  of  a  lawful  act,  a  casualty  purely  accidental  arises,  no 
action  can  be  supported  for  an  injury  arising  therefrom.  Davis  v. 
Saunders,  2  Chit.  R.  639;  Com.  Dig.  Battery,  A  (Day's  Ed.)  and  notes; 
Vincent  v.  Stinehour,  7  Verm.  69.  In  applying  these  rules  to  the 
present  case,  we  can  perceive  no  reason  why  the  instructions  asked 
for  by  the  defendant  ought  not  to  have  been  given ;  to  this  effect,  that 
if  both  plaintiff  and  defendant  at  the  time  of  the  blow  were  using  ordi- 
nary care,  or  if  at  that  time  the  defendant  was  using  ordinary  care, 
and  the  plaintiff  was  not,  or  if  at  that  time,  both  the  plaintiff  and 
defendant  were  not  using  ordinary  care,  then  the  plaintiflF  could  not 
recover. 

In  using  this  term,  ordinary  care,  it  may  be  proper  to  state,  that 
what  constitutes  ordinary  care  will  vary  with  the  circumstances  of 
cases.  In  general,  it  means  that  kind  and  degree  of  care,  which  pru- 
dent and  cautious  men  would  use,  such  as  is  required  by  the  exigency 
of  the  case,  and  such  as  is  necessary  to  guard  against  probable  danger. 
A  man,  who  should  have  occasion  to  discharge  a  gun,  on  an  open  and 
extensive  marsh,  or  in  a  forest,  would  be  required  to  use  less  circum- 
spection and  care,  than  if  he  were  to  do  the  same  thing  in  an  in- 
habited town,  village,  or  city.  To  make  an  accident,  or  casualty,  or 
as  the  law  sometimes  states  it,  inevitable  accident,  it  must  be  such  an 
accident  as  the  defendant  could  not  have  avoided  by  the  use  of  the 
kind  and  degree  of  care  necessary  to  the  exigency,  and  in  the  circum- 
stances in  which  he  was  placed. 

We  are  not  aware  of  any  circumstances  in  this  case,  requiring  a  dis- 
tinction between  acts  which  it  was  lawful  and  proper  to  do,  and  acts 
of  legal  duty.  There  are  cases,  undoubtedly,  in  which  officers  are 
bound  to  act  under  process,  for  the  legality  of  which  they  are  not  re- 
sponsible, and  perhaps  some  others  in  which  this  distinction  would  be 
important.  We  can  have  no  doubt  that  the  act  of  the  defendant  in 
attempting  to  part  the  fighting  dogs,  one  of  which  was  his  own,  and  for 
the  injurious  acts  of  which  he  might  be  responsible,  was  a  lawful  and 
proper  act,  which  he  might  do  by  proper  and  safe  means.  If,  then, 
in  doing  this  act,  using  due  care  and  all  proper  precautions  necessary 
to  the  exigency  of  the  case,  to  avoid  hurt  to  others,  in  raising  his  stick 
for  that  purpose,  he  accidentally  hit  the  plaintiff  in  his  eye,  and  wounded 
him,  this  was  the  result  of  pure  accident,  or  was  involuntary  and  un- 
avoidable, and  therefore  the  action  would  not  lie.  Or  if  the  defendant 
was  chargeable  with  some  negligence,  and  if  the  plaintiff  was  also 
chargeable  with  negligence,  we  think  the  plaintiff  cannot  recover  with- 
out showing  that  the  damage  was  caused  wholly  by  the  act  of  the  de- 
fendant, and  that  the  plaintiff's  own  negligence  did  not  contribute  as 
an  efficient  cause  to  produce  it. 

The  court  instructed  the  jury,  that  if  it  was  not  a  necessary  act,  and 
the  defendant  was  not  in  duty  bound  to  part  the  dogs,  but  might  with 
propriety  interfere  or  not  as  he  chose,  the  defendant  was  responsible 


784  BROWN   V.    KENDALL.  [CHAP.   V. 

for  the  consequences  of  the  blow,  unless  it  appeared  that  he  was  in 
the  exercise  of  extraordinary  care,  so  that  the  accident  was  inevitable, 
using  the  word  not  in  a  strict  but  a  popular  sense.  This  is  to  be  taken 
in  connection  with  the  charge  afterwards  given,  that  if  the  jury  be- 
Heved,  that  the  act  of  interference  in  the  fight  was  unnecessary  (that 
is,  as  before  explained,  not  a  duty  incumbent  on  the  defendant),  then 
the  burden  of  proving  extraordinary  care  on  the  part  of  the  defendant, 
or  want  of  ordinary  care  on  the  part  of  plaintiff,  was  on  the  defendant. 

The  court  are  of  opinion  that  these  directions  were  not  conformable 
to  law.  If  the  act  of  hitting  the  plaintiff  was  unintentional,  on  the 
part  of  the  defendant,  and  done  in  the  doing  of  a  lawful  act,  then  the 
defendant  was  not  liable,  unless  it  was  done  in  the  want  of  exercise  of 
due  care,  adapted  to  the  exigency  of  the  case,  and  therefore  such  want 
of  due  care  became  part  of  the  plaintiff's  case,  and  the  burden  of  proof 
was  on  the  plaintiff  to  estabhsh  it.  2  Greenl.  Ev.,  §  So;  Powers  v.  Rus- 
sell, 13  Pick.  (39,  76;  Tourtellot  v.  Rosebrook,  11  Met.  460. 

Perhaps  the  learned  judge,  by  the  use  of  the  term  extraordinary  care, 
in  the  above  charge,  explained  as  it  is  by  the  context,  may  have  intended 
nothing  more  than  that  increased  degree  of  care  and  diligence,  which 
the  exigency  of  particular  circumstances  might  require,  and  which  men 
of  ordinary  care  and  prudence  would  use  under  like  circumstances,  to 
guard  against  danger.  If  such  was  the  meaning  of  this  part  of  the 
charge,  then  it  does  not  differ  from  our  views,  as  above  explained. 
But  we  are  of  opinion,  that  the  other  part  of  the  charge,  that  the 
burden  of  proof  was  on  the  defendant,  was  incorrect.  Those  facts 
which  are  essential  to  enable  the  plaintiff  to  recover,  he  takes  the  bur- 
den of  pro\'ing.  The  evidence  may  be  offered  by  the  plaintiff  or  by  the 
defendant;  the  question  of  due  care,  or  want  of  care,  may  be  essen- 
tially connected  with  the  main  facts,  and  arise  from  the  same  proof; 
but  the  effect  of  the  rule,  as  to  the  burden  of  proof,  is  this,  that  when  the 
proof  is  all  in,  and  before  the  jury,  from  whatever  side  it  comes,  and 
whether  directly  proved,  or  inferred  from  circumstances,  if  it  appears 
that  the  defendant  was  doing  a  lawful  act,  and  unintentionally  hit  and 
hurt  the  plaintiff,  then  unless  it  also  appears  to  the  satisfaction  of  the 
jury,  that  the  defendant  is  chargeable  with  some  fault,  negligence, 
carelessness,  or  want  of  prudence,  the  plaintiff  fails  to  sustain  the 
burden  of  proof,  and  is  not  entitled  to  recover. '^ 

A'ew  trial  ordered. 

1  See  Morris  v.  Piatt,  21  Conn.  75.  —  Ed. 


SECT.  IV.]  MOSES  V.   DUBOIS.  785 

MOSES  V.  DUBOIS. 
CouBT  OF  Appeals,  South  Carolina,  1838. 

[Reported  6  Cush.  292.] 

This  was  an  action  for  false  imprisonment,  against  the  captain  of  a 
steamboat,  for  carrpng  Sol.  Moses  (deputy  sheriff),  to  Norfolk,  against 
his  will.  The  plaintiff  had  a  bail  writ  of  Squire  &  Rogers  v.  one  Dicker- 
son,  who  was  a  passenger  in  defendant's  steamboat;  he  went  on  board 
to  arrest  Dickerson,  just  as  the  steamboat  was  about  to  leave  the 
wharf;  informed  the  captain  that  he  had  a  prisoner  on  board,  and  re- 
quested him  to  wait  until  he  obtained  assistance.  But  the  usual  time 
of  departure  ha\ing  passed,  the  boat  went  into  the  stream  (some  dis- 
tance from  the  wharf),  and  stopped.  The  plaintiff  served  the  writ, 
but  Dickerson  resisted,  and  the  plaintiff  demanded  assistance  of  the 
defendant  and  the  passengers,  but  they  refused  their  aid.  He  then 
demanded  to  go  ashore  for  assistance.  This  also  the  captain  refused, 
but  offered  to  send  him  and  his  prisoner  ashore;  but  as  the  plaintiff 
could  not  take  Dickerson  with  him,  he  declined  going.  The  captain 
then  departed  for  Norfolk,  ^^^len  opposite  Fort  Moultrie,  the  plain- 
tiff requested  to  be  sent  ashore;  but  the  captain  answered  it  was  then 
too  late;  and  took  him  to  Norfolk  and  back,  for  which  the  plaintiff 
was  required  to  pay  $40  passage  money.  In  the  meantime  he  lost  the 
serving  of  writs,  &c.,  which  was  estimated  at  S50.  He  was  gone  about 
two  weeks,  and  demanded  vindictive  damages,  for  such  violation  of  his 
personal  liberty.    No  actual  violence  to  his  person  was  offered. 

His  Honor  charged  the  jury. 

1st.  That  neither  the  captain  nor  passengers,  were  under  any  legal 
obligation  to  assist  the  deputy  sheriff  in  taking  Dickerson,  under  the 
civil  process  of  a  bail  writ,  although  they  might  have  been  justified,  if 
they  had  chosen  so  to  do. 

2d.  That  there  being  no  positive  violence  offered  to  the  person  of  the 
plaintiff,  the  jury  could  not  find  damages  against  the  captain,  unless 
he  had  wilfully  taken  the  plaintiff  from  his  proximity  to  the  wharf, 
where  he  might,  perhaps,  have  obtained  assistance  of  the  sheriff's  offi- 
cers, or  of  other  persons,  and  had  done  this  with  a  view  to  prevent  or 
lessen  the  chances  of  such  assistance;  that  in  this  way,  he  might  have 
connived  at  the  escape  and  promoted  the  detention  of  the  plaintiff,  so 
as  to  constitute  his  imprisonment  —  of  this,  the  jury  were  to  judge. 

3d.  That  although  the  captain  had  offered  to  send  the  plaintiff  and 
his  prisoner  ashore,  after  the  steamer  had  got  into  the  stream,  and  al- 
though the  plaintiff  had  refused  to  go  without  Dickerson,  whom  he 
could  not  command;  yet,  as  the  captain  afterwards  refused  to  land 
the  plaintiff  ashore,  when  he  desired  it  (opposite  Fort  Moultrie),  his 
conduct  afPorded  some  evidence  of  management  to  detain  him,  and  to 


786  MOSES  V.  DUBOIS.  [chap.  y. 

cairy  him  to  Norfolk,  against  his  will.  Which  management,  if  the  jury 
believed  it  from  the  whole  conduct  of  the  captain,  might  amount  to  a 
false  imprisonment,  and  support  the  action,  although  no  violence  was 
done  to  the  person.  Finally,  that  although  the  defendant  was  in  no 
way  bound  to  assist  the  deputy  sheriff,  and  had  conducted  civilly 
enough,  that  his  swinging  off  the  boat  from  the  wharf  so  quickly,  after 
the  plaintiff  announced  his  business  —  and  his  afterwards  refusing  to 
send  him  ashore,  savored  of  a  disposition  to  frustrate  his  efforts,  or 
might  arise  from  a  collusion  with  Dickerson  to  favor  his  escape.  But 
the  jury  were  to  judge  whether  it  amounted  in  fact  to  wilful  and  un- 
lawful detention,  or  false  imprisonment,  and  if  so,  to  find  for  the  plain- 
tiff;  otherwise  for  the  defendant. 

The  jury  returned  a  verdict  of  $100. 

The  defendant  appealed,  and  moved  for  a  new  trial,  on  the  following 
grounds: 

1st.  The  defendant  was  under  no  obligation  to  postpone  his  voyage, 
until  the  plaintiff  should  think  fit  to  leave  his  vessel. 

2d.  His  Honor  charged  the  jury  that  they  might  find  for  the  plain- 
tiff, on  the  ground  of  collusion  between  the  defendant  and  Dickerson, 
and  left  it  to  the  jury  to  say  whether  there  was  or  was  not  collusion; 
whereas,  it  is  respectfully  submitted,  that  as  no  evidence  of  collusion 
was  offered,  nor  even  any  from  which  collusion  might  be  inferred,  the 
only  question  proper  to  be  left  to  the  jury  was,  whether  the  defendant, 
before  he  proceeded  on  his  voyage,  allowed  the  plaintiff  a  fair  oppor- 
tunity of  deciding  whether  he  would  go  ashore  or  not. 

3d.  The  verdict  is  palpably  against  evidence,  and  opposed  to  the 
plainest  rules  of  justice. 

Earle,  J.,  delivered  the  opinion  of  the  court. 

The  lines  of  a  separation  between  the  injuries  which  are  redressed  by 
actions  of  trespass  vi  d  armis,  and  those  which  are  redressed  by  actions 
on  the  case,  are  often  so  slightly  defined  as  to  be  almost  imperceptible. 
But  it  is  oftener  difficult  to  distinguish  between  injuries  that  are  imme- 
diate and  such  as  are  consequential,  than  such  as  are  committed  with 
force,  and  such  as  are  without  force.  The  essential  and  invariable 
ground  of  separation  between  trespass  and  case,  is  the  force  which  is 
always  necessary  to  sustain  an  action  of  trespass  vi  et  armis,  whether 
to  the  person  or  to  the  property.  That  the  e\ndence  in  this  case  would 
authorize  a  jury  to  give  damages,  may  be  conceded  without  deciding 
the  question,  for  it  is  not  every  injury  ex  delicto  that  will  sustain  tres- 
pass :  and  the  defendant  may  have  been  actuated  by  the  worst  motives 
without  making  himself  liable  in  this  form  of  action.  Every  unlawful 
restraint  of  personal  liberty  is  an  imprisonment,  whether  accompanied 
by  corporal  touch  or  not  —  whether  in  a  house,  in  a  ship,  or  in  the 
street.  But  force  of  some  sort  must  be  used,  and  it  must  be  a  deten- 
tion against  the  will,  and  it  is  indispensable  that  these  two  circum- 
stances should  unite.    The  force  may  be  exhibited  in  a  variety  of  ways 


SECT.  IV.]  MOSES   V.   DUBOIS.  787 

without  actual  assault  or  corporal  touch  —  by  locking  a  door  after 
enticing  one  within,  and  refusing  to  open  it  for  his  departfire;  by 
setting  sail  or  pushing  off  from  shore,  having  one  on  board,  and  refus- 
ing to  allow  him  to  go  ashore;  or  by  detaining  one  on  the  highway  by 
threats  of  personal  ^^olence  if  he  departed.  And  it  is  equally  essential 
that  the  person  should  be  detained  against  his  will ;  for  if  he  voluntarily 
place  himself  in  a  situation  where  another  may  lawfully  do  that  which 
has  the  effect  of  restraining  liberty,  especially  if  he  refuse  to  depart 
when  he  may,  he  cannot  complain  that  he  is  unlawfully  imprisoned 
against  his  will.  A  sheriff's  officer  goes  to  the  house  of  A  on  the  even- 
ing of  an  entertainment,  with  a  bail  process  against  one  of  his  guests, 
and  enters,  as  he  lawfully  may,  and  makes  the  arrest,  A  refusing  to 
assist  him,  but  offering  no  hindrance;  being  unable  to  remove  his  pris- 
oner, he  chooses  to  remain  until  the  close  of  the  entertainment,  expecting 
then  to  accomplish  his  purpose  on  the  departure  of  the  guests ;  but  the 
prisoner  being  on  a  xnsit  there,  remains.  The  officer  being  informed 
that  the  doors  are  about  to  be  closed,  is  requested  to  depart  with  his 
prisoner  if  he  can  take  him,  else  without  him;  but  he  is  unable  to  take, 
and  refuses  to  go  without  him.  If  A  should  lock  his  doors  and  retire  to 
rest,  could  the  officer  complain  of  false  imprisonment  if  A  should  refuse 
to  rise  at  a  late  hour  of  the  night  at  his  request,  to  open  the  door?  I 
should  think  not.  If  a  man  enters  a  tavern  and  continues  there  all 
night  against  the  will  of  the  landlord,  it  is  a  trespass  —  could  he  com- 
plain if  the  landlord  shuts  his  door  upon  him?  The  general  rule  is,  that 
a  trespass  will  not  lie  for  a  mere  nonfeasance;  and  it  seems  to  follow 
from  that  proposition,  that  when  an  act  has  been  done,  in  the  first  in- 
stance lawful  in  itself,  it  cannot  be  rendered  unlawful  ab  initio,  except  by 
some  positive  act  incompatible  with  the  exercise  of  the  legal  right  to  do 
the  first  act.  20  John.  Rep.  429,  15  id.  401.  In  the  case  made  by  the 
evidence,  it  does  not  appear  that  the  plaintiff  was  carried  from  the 
shore  against  his  will,  but  the  reverse.  The  destination  of  the  boat  was 
known  —  the  accustomed  hour  of  departure  was  passed ;  the  boat  was 
in  the  act  of  getting  under  way;  at  that  moment  the  plaintiff  chose 
to  go  on  board,  to  arrest  a  person  on  a  bail  process,  ex-idently  under  a 
mistaken  impression  as  to  the  extent  of  his  authority ;  and  seeing  the 
boat  leaving  the  wharf,  he  chose  to  remain.  Here,  then,  there  was  no 
unlawful  detention,  according  to  the  principles  I  have  laid  down:  the 
defendant  was  in  the  discharge  of  his  known  and  accustomed  duty,  and 
therefore  in  the  performance  of  a  lawful  act,  and  the  plaintiff  was  not 
detained  against  his  will.  At  what  time  did  the  false  imprisonment 
commence?  After  the  boat  had  proceeded  into  the  stream  some  dis- 
tance from  the  wharf,  the  defendant  came  and  proposed  to  the  plaintiff 
to  send  him  ashore  with  his  prisoner,  if  he  could  take  him,  else  to  send 
him  alone.  The  plaintiff  refused  to  go  unless  the  defendant  would  aid 
him  in  carrying  his  prisoner.  It  need  not  be  repeated  that  this  the 
defendant  was  not  bound  to  do.    It  was  his  duty  to  interpose  no  obstacle 


788  MOSES  V.  DUBOIS.  [chap.  v. 

to  the  arrest  or  removal  of  the  prisoner,  but  rather  to  afford  such  facili- 
ties as  he  could  to  the  service  of  legal  process.  This  he  seems  to  have 
done,  and  more  could  hardly  have  been  expected.  On  the  refusal  of  the 
plaintiff  to  go  ashore  the  defendant  proceeded  on  his  voyage,  one  on 
which  the  plaintiff  knew  the  boat  was  in  the  act  of  departing  when 
he  went  aboard.  This  was  also  the  accustomed  duty,  the  office  of  the 
defendant,  and  was  therefore  a  lawful  act. 

If  the  defendant  was  not  bound  to  aid  in  the  arrest  and  removal  of 
the  prisoner,  I  do  not  perceive  that  he  was  bound  either  to  delay  his 
voyage,  or  put  back  his  boat,  to  enable  the  plaintiff  to  procure  assist- 
ance. When  the  boat  had  arrived  at  the  mouth  of  the  harbor  near 
Sullivan's  Island,  the  plaintiff  demanded  to  be  put  ashore,  which  the 
defendant  then  refused ;  here  commenced  the  detention  of  the  plaintiff 
against  his  will.  Was  it  unlawful?  I  think  it  cannot  be  so  held;  the 
defendant  only  proceeded  on  his  voyage.  His  refusal  to  send  the 
plaintiff  ashore  at  that  time,  which  would  have  delayed  his  progress 
and  put  him  to  trouble,  was  a  mere  nonfeasance,  which,  if  he  had  been 
guilty  of  no  trespass  up  to  that  time,  did  not  render  him  a  trespasser 
ab  initio:  it  was  not  a  positive  act,  incompatible  with  the  legal  exercise 
of  the  right  to  proceed  from  the  wharf,  the  plaintiff  being  on  board. 

If  the  plaintiflF,  as  the  case  was  put  to  the  jury,  had  wilfully  put  off 
from  the  shore,  to  prevent  assistance,  and  to  aid  the  escape  of  Dick- 
erson,  he  might,  perhaps,  be  liable  to  the  creditor  of  Dickerson.  But 
I  do  not  perceive  how  a  connivance  in  the  case  of  Dickerson  can  be 
united  with  a  deliberate  purpose  of  detaining  the  plaintiff  and  carrying 
him  to  Norfolk  against  his  will.  The  most  effectual  mode  of  aiding  the 
escape  of  Dickerson,  would  seem  to  be  to  hasten  the  departure  of 
Moses ;  besides,  a  deliberate  purpose  of  carrying  him  to  Norfolk  cannot 
be  reconciled  with  the  offer  to  send  him  ashore:  and  therefore  could 
not  have  existed  at  the  time  of  his  leaving  the  wharf,  if  he  did  it  ever  so 
hastily.  If  the  defendant  exliibited  an  anxiety  to  aid  the  escape  of 
Dickerson,  and  hastened  to  leave  the  wharf  and  get  into  the  stream,  to 
prevent  the  plaintiff  from  obtaining  help,  it  was  improper.  The  court 
has  striven  to  sustain  the  verdict,  but  can  find  no  precedent  of  such  an 
action.  The  principal  authority  cited  by  counsel  from  Blackstone,  and 
referred  to  by  Chitty,  is  this :  "  Injuries  to  the  person  may  be  committed, 
1st,  by  threats  and  menaces  of  bodily  hurt,  through  fear  of  which,  a 
man's  business  is  interrupted,"  and  cites  Finch,  L.,  202,  Reg.  104.  I 
have  not  been  able  to  consult  these  last:  I  suppose  it  to  be  of  actual 
personal  detention  from  customary  employment,  by  threats  and  putting 
in  fear;  and  this  comes  up  to  what  I  have  before  said  of  the  kind  of  force 
which  may  be  used.  But  mere  dicta  in  the  old  books  sometimes  mislead 
and  sometimes  have  ceased  to  be  of  authority.  It  is  said  in  Viner, 
citing  Brooke,  "if  a  man  says  he  will  cut  off  my  arm,  it  is  an  assault;" 
"  if  a  man  says  to  me  that  if  I  will  not  cease  my  suit  which  I  have  against 
him,  he  will  beat  me  —  this  is  an  assault."    But  it  is  well  settled  now, 


SECT.  IV.]  KEGINA    V.   LESLEY.  789 

that  no  mere  words  whatsoever  will  constitute  an  assault.  We  cannot 
believe  that  the  extensive  mischiefs  will  ensue,  in  the  administration  of 
justice,  which  have  been  anticipated,  should  we  set  aside  this  verdict; 
such  a  conjuncture  of  circumstances  is  not  likely  to  occur  again.  The 
consequences  have  grown  out  of  the  mistake  of  the  plaintiff,  in  suppos- 
ing he  had  a  right  to  call  on  bystanders  to  aid  him  in  making  the 
arrest.  In  like  cases  again,  the  sheriff's  officer  will  only  have  to  take  with 
him  such  a  force  of  followers  as  will  enable  him  to  overcome  opposition. 
Whatever  may  be  the  effect,  we  cannot  overthrow  the  settled  rules 
of  pleading,  and  obliterate  the  settled  forms  of  action,  to  suit  the  exi- 
gency in  a  particular  case,  or  to  avoid  the  possible  consequence  of  a 
particular  decision. 

The  motion  for  a  new  trial  is  granted. 


REGINA   V.   LESLEY. 
Crown  Case  Reserved.     1860. 

[Reported  Bell,  220 ;  8  Cvx  C.  C.  269.] 

Erle,  C.  J.^  In  this  case  the  question  is  whether  a  conviction  for 
false  imprisonment  can  be  sustained  upon  the  following  facts. 

The  prosecutor  and  others,  being  in  Chili,  and  subjects  of  that  state, 
were  banished  by  the  government  from  Chili  to  England. 

The  defendant,  being  master  of  an  English  merchant  vessel  lying  in 
the  territorial  waters  of  Chili,  near  Valparaiso,  contracted  with  that 
government  to  take  the  prosecutor  and  his  companions  from  Valparaiso 
to  Liverpool,  and  they  were  accordingly  brought  on  board  the  defen- 
dant's vessel  by  the  officers  of  the  government  and  carried  to  Liverpool 
by  the  defendant  under  his  contract.  Then,  can  the  conviction  be 
sustained  for  that  which  was  done  within  the  Chilian  waters?  We 
answer  no. 

We  assume  that  in  Chili  the  act  of  the  government  towards  its  sub- 
jects was  lawful ;  and  although  an  English  ship  in  some  respects  carries 
with  her  the  laws  of  her  country  in  the  territorial  waters  of  a  foreign 
state,  yet  in  other  respects  she  is  subject  to  the  laws  of  that  state  as  to 
acts  done  to  the  subjects  thereof. 

1  The  opinion  only  is  given.  In  aiklition  to  the  facts  therein  stated,  the  following 
may  be  useful ;  — 

It  appeared  by  the  evidence  for  the  prosecution  that  the  prisoners  requested  the 
defendant  to  take  them  to  Peru,  which  was  near,  offering  to  pay  him  what  the  Govern- 
ment of  Chili  paid  him,  but  that  the  defendant  refused,  on  the  ground  that  his  contract 
required  him  to  carry  the  prisoners  to  Liverpool.  They  made  no  other  request  to  be 
put  ashore.  The  vessel  touched  at  the  Azores,  and  the  defendant  made  holes  in  the 
boats  to  prevent  the  escape  of  the  prisoners. 

Watson,  B.  ,  who  tried  the  case,  directed  a  verdict  of  guilty,  and  reported  the  case 
to  the  Court  for  Crown  Cases  Reserved.  —  Ed. 


790  REGINA  V.   LESLEY.  [CHAP.  V. 

We  assume  that  the  government  could  justify  all  that  it  did  within 
its  own  territory,  and  we  think  it  follows  that  the  defendant  can  justify- 
all  that  he  did  there  as  agent  for  the  government  and  under  its  author- 
ity. In  Dobree  r.  Napier,  2  Bing.  N.  C.  781,  the  defendant,  on  behalf 
of  the  Queen  of  Portugal,  seized  the  plaintiff's  vessel  for  violating  a 
blockade  of  a  Portuguese  port  in  time  of  war.  The  plaintiff  brought 
trespass  ;  and  judgment  was  for  the  defendant,  because  the  Queen  of 
Portugal,  in  her  own  territor}',  had  a  right  to  seize  the  vessel  and  to 
employ  whom  she  would  to  make  the  seizure  ;  and  therefore  the  defend- 
ant, though  an  Englishman  seizing  an  English  vessel,  could  justify  the 
act  under  the  employment  of  the  Queen. 

We  think  that  the  acts  of  the  defendant  in  Chili  become  lawful  on 
the  same  principle,  and  therefore  no  ground  for  the  conviction. 

The  further  question  remains.  Can  the  conviction  be  sustained  for 
that  which  was  done  out  of  the  Chilian  territory-?    And  we  think  it  can. 

It  is  clear  that  an  English  ship  on  the  high  sea,  out  of  any  foreign 
territory,  is  subject  to  the  laws  of  England  ;  and  persons,  whether  for- 
eign or  English,  on  board  such  ship,  are  as  much  amenable  to  English 
law  as  they  would  be  on  English  soil.  In  Regina  v.  Sattler,  1  D.  &  B. 
C.  C.  525,  this  principle  was  acted  on,  so  as  to  make  the  prisoner,  a  for- 
eigner, responsible  for  murder  on  board  an  English  ship  at  sea.  The 
same  principle  has  been  laid  down  by  foreign  writers  on  international 
law,  among  which  it  is  enough  to  cite  Ortolan,  "  Sur  la  Diplomatic  de 
la  Mer,"  liv.  2.  cap.  13. 

The  Merchant  Shipping  Act,  17  &  18  Vict.  c.  104,  s.  267,  makes  the 
master  and  seamen  of  a  British  ship  responsible  for  all  offences  against 
property  or  person  committed  on  the  sea  out  of  her  Majesty's  dominions 
as  if  they  had  been  committed  within  the  jurisdiction  of  the  Admiralty 
of  England. 

Such  being  the  law,  if  the  act  of  the  defendant  amounted  to  a  false 
imprisonment  he  was  liable  to  be  convicted.  Now,  as  the  contract  of 
the  defendant  was  to  receive  the  prosecutor  and  the  others  as  prisoners 
on  board  his  ship,  and  to  take  them,  without  their  consent,  over  the  sea 
to  England,  although  he  was  justified  in  first  receiving  them  in  Chili, 
yet  that  justification  ceased  when  he  passed  the  line  of  Chilian  juris- 
diction, and  after  that  it  was  a  wrong  which  was  intentionallj-  planned 
and  executed  in  pursuance  of  the  contract,  amounting  in  law  to  a  false 
imprisonment. 

It  may  be  that  transportation  to  England  is  lawful  by  the  law  of 
Chili,  and  that  a  Chilian  ship  might  so  lawfully  transport  Chilian  sub- 
jects ;  but  for  an  English  ship  the  laws  of  Chili,  out  of  the  state,  are 
powerless,  and  the  lawfulness  of  the  acts  must  be  tried  by  English  law. 
For  these  reasons,  to  the  extent  above  mentioned,  the  conviction  is 
affirmed.  Conviction  confirmed  accordingly.^ 

1  For  the  extent  to  which  the  command  of  a  military  or  naval  superior  officer  will 
justify  a  criminal  act,  see  Reg.  v.  Thomas,  1  Russ.  Crimes,  7ol  ;  Reg.  v.  Hutchinson, 
9  Cox  C.  C.  555;  U.  S.  v.  Clark,  31  F.  R.  710,  infra.  — Ed. 


SECT.  IV,]   THE  BALMAIN  NEW  FERRY  CO.,  LTD.,  V.   ROBERTSON.   791 


THE   BALMAIN   NEW   FERRY   CO.,    LTD.,    v.   ROBERTSON. 
High  Court  of  Australia,  1906. 

[Reported  4  Com.  L.  R.  379.] 

O'Connor,  J.    The  material  facts  of  this  case  may  be  shortly  stated. 

The  appellants  carried  on  the  business  of  a  harbor  steam  ferry  from 
the  City  of  Sydney  to  Balmain,  in  connection  with  which  they  used  a 
wharf  and  premises  leased  by  them  from  the  Harbor  Trust  Commis- 
sioners. Fares  were  not  taken  on  the  steamers  or  on  the  Balmain  side, 
but  were  all  collected  on  the  Sydney  wharf  on  the  following  system: 
On  the  street  side  of  the  wharf  were  two  registering  turnstiles,  one  for 
entry,  the  other  for  exit.  The  turnstiles  did  not  quite  fill  up  the  open- 
ing in  which  they  moved,  there  being  a  space  of  some  eight  and  a  half 
inches  between  the  outer  edge  of  the  turnstiles  and  the  bulkhead.  For 
the  purposes  of  this  case  it  may  be  taken  that  there  was  no  other  way  of 
entering  or  leaving  the  wharf  on  the  land  side  except  by  the  turnstiles. 
An  officer  of  the  company  was  stationed  at  each  turnstile.  Passengers 
entering  the  wharf  paid  one  penny  to  the  officer  at  the  entry  turnstile, 
were  admitted,  and  had  then  the  right  to  travel  by  the  company's 
steamers  to  Balmain.  Similarly  passengers  leaving  the  wharf,  whether 
they  had  traveled  from  Balmain  in  the  company's  steamers  or  not, 
paid  a  penny  to  the  officer  at  the  exit  turnstile  and  were  allowed  to  pass 
through  to  the  street.  The  turnstile  in  each  case  automatically  regis- 
tered the  number  of  passengers  passing  through,  and  was  thus  a  check 
upon  the  officers'  cash  takings.  Two  photographs  were  put  in  by  the 
plaintiff,  respondent,  one  showing  the  exterior,  the  other  the  interior 
of  the  wharf,  from  which  it  appeared  that  there  was  a  notice  board  a 
few  feet  over  the  turnstiles,  on  which  were  painted  the  words,  "  Notice. 
A  fare  of  one  penny  must  be  paid  on  entering  or  leaving  the  wharf.  No 
exception  will  be  made  to  this  rule,  whether  tlie  passenger  has  traveled 
by  the  ferry  or  not."  The  notice  was  so  placed  that  in  the  daytime,  at 
least,  it  would  be  difficult  for  a  passenger  giving  reasonable  attention 
to  his  surroundings  to  avoid  seeing  it.  The  photographs  also  showed  a 
large  gas  lamp  so  situated  that  at  night  time,  if  alight,  it  would  throw  a 
full  light  on  the  notice,  but  there  was  no  direct  evidence  either  tiiat  it 
was  generally  lit  at  night  or  that  it  was  alight  on  the  evening  of  the 
occurrence. 

On  the  night  of  5th  June,  1906,  the  respondent  and  a  lady  came  to  the 
wharf,  and,  with  the  intention  of  crossing  to  Balmain  in  one  of  the 
appellant's  steamers,  passed  through  the  entrance  turnstile,  each  pay- 
ing a  penny.    When  they  had  got  to  the  water  side  of  the  wharf  they 


792  ^   THE   BALMAIN   NEW  FERRY  CO.,  LTD.,  V.   ROBERTSON.      [CHAP.  V. 

found  that  the  steamer  had  gone,  and,  instead  .of  waiting  for  the  next, 
they  determined  to  go  to  another  ferry  company's  wharf  and  cross  the 
harbor  by  another  steamer  to  Balmain.  The  respondent,  seeing  no  way 
of  getting  from  the  wharf  into  the  street  except  by  the  turnstiles, 
asked  one  of  the  officers  at  the  turnstiles  to  show  him  the  way  out. 
The  officer  replied  that  there  was  only  one  way  out,  and  that  was 
through  the  turnstile.  The  respondent  then  asked  if  he  was  expected 
to  pay  on  going  out,  seeing  that  he  had  not  traveled  by  the  steamer. 
The  officer  replied  in  the  affirmative,  and  told  him  that  unless  he 
did  pay  he  would  not  be  allowed  to  go  out  through  the  turnstile.  The 
respondent  denied  the  company's  right  to  make  the  charge,  or  to  make 
its  payment  a  condition  of  his  being  permitted  to  pass  through  the 
turnstile.  The  officer  then  called  his  attention  to  the  notice.  After 
some  further  conversation  the  respondent  endeavored  to  force  his 
v.'ay  through  the  eight  and  a  half  inch  space  between  the  entrance 
turnstile  and  the  bulkhead,  but  was  prevented  from  doing  so  by  the 
appellant  company's  officers,  who  used  force  for  that  purpose.  After 
some  twenty  minutes,  during  which  the  respondent  continued  to 
assert  and  the  officers  to  deny  his  right  to  pass  out  through  the  turnstiles 
without  payment,  the  respondent  eventually,  in  spite  of  opposing 
force  on  the  part  of  the  ofiicers,  squeezed  his  way  out  between  the  exit 
turnstile  and  the  bulkhead  and  gained  the  street.  These  facts  con- 
stituted the  assault  and  false  imprisonment  for  which  the  respondent 
sued. 

At  the  trial  of  the  action  the  respondent  obtained  a  verdict  for  £100 
damages,  and,  on  appeal,  the  Supreme  Court  granted  a  rule  nisi  for  a 
new  trial  or  a  nonsuit  or  verdict  for  the  defendants  on  the  grounds 

(1)  that  His  Honor  was  in  error  in  directing  the  jury  that  the  trespass 
complained  of  was  not  within  the  scope  of  the  servants'  authority; 

(2)  that  he  was  in  error  in  directing  that  the  defendants  had  no  right 
to  demand  the  second  penny;  and  (3)  that  he  should  have  directed  the 
jury  that,  if  they  came  to  the  conclusion  that  the  company  had  done 
what  was  reasonable  to  give  persons  going  on  the  wharf  notice  of  the 
terms  on  which  they  were  admitted,  the  jury  were  entitled  to  find  that 
the  plaintiff  was  bound  by  that  notice.  The  rule  was  subsequently 
discharged  with  costs:  Robertson  v.  Balmain  New  Ferry  Co.,  Ltd. 

From  this  decision,  as  to  the  second  and  third  grounds  of  the  rule 
7iisi,  the  present  appeal  was  brought  by  special  leave,  the  court  having 
refused  to  grant  leave  as  to  the  first  ground. 

It  is  admitted  on  this  appeal  that  the  company  are  responsible  for 
what  was  done  by  their  officers,  so  that  there  is  left  for  our  decision 
substantially  one  question  only,  namely,  whether,  on  the  facts,  the 
company  are  liable  to  the  plaintiff  for  false  imprisonment  and  assault. 
The  legal  position  on  which  the  plaintiff  relies  may  be  thus  stated: 
He  entered  the  wharf  under  a  contract  to  be  carried  in  the  company's 
steamer  from  Sydney  to  Balmain.    Before  the  contract  was  performed 


SECT.    IV.]       THE   BALMAIN  NEW  FERRY  CO.,  LTD.,  V.  ROBERTSON.      793 

he  decided  to  abandon  it,  and,  having  no  further  business  on  the 
wharf,  became  entitled  to  pass  out  to  the  street  through  the  turnstiles, 
or,  if  not  through  them,  at  least  through  the  eight  and  a  half  inch 
space  between  the  turnstile  and  the  bulkhead.  The  company's  officers 
by  force  prevented  him  from  doing  so,  refused  to  allow  him  to  pass  out 
through  the  turnstile  except  on  payment  of  a  penny  at  the  exit  turn- 
stile, and  thus  kept  him  imprisoned  as  a  means  of  enforcing  payment  of 
that  demand.  He  maintains  that,  even  if  he  were  bound  to  pay  the 
extra  penny  as  a  matter  of  contract  and  it  became  a  debt  recoverable 
in  the  courts,  the  company  could  not  thus  take  the  law  into  their  own 
hands  and  depri^•e  him  of  his  liberty  in  order  to  enforce  payment.  If 
that  were  an  accurate  statement  of  the  position,  the  plaintiff's  conten- 
tion would  be  unanswerable.  But  it  is  not  an  accurate  statement  of 
the  position.  Undoubtedly  it  is  not  permissible  for  a  creditor,  except 
under  due  process  of  the  law,  to  abridge  the  liberty  of  his  debtor  for 
the  purpose  of  enforcing  payment.  But  the  abridgment  of  a  man's 
liberty  is  not  under  all  circumstances  actionable.  He  may  enter  into 
a  contract  which  necessarily  involves  the  surrender  of  a  portion  of  his 
liberty  for  a  certain  period,  and  if  the  act  complained  of  is  nothing 
more  than  a  restraint  in  accordance  with  that  surrender  he  cannot 
complain.  Nor  can  he,  without  the  assent  of  the  other  party,  by  elect- 
ing to  put  an  end  to  the  contract,  become  entitled  at  once,  uncon- 
ditionally and  irrespective  of  the  other  party's  rights,  to  regain  his 
liberty  as  if  he  had  never  surrendered  it.  A  familiar  instance  of  such  a 
contract  is  that  between  a  passenger  and  the  railway  company  which 
undertakes  to  carry  him  on  a  journey.  If  the  passenger  suddenly  during 
the  journey  decided  to  abandon  it  and  to  leave  the  train  at  the  next 
station,  being  one  at  which  the  train  was  not  timed  to  stop,  he  clearly 
could  not  be  entitled  to  have  the  train  stopped  at  that  station.  How- 
ever much  he  might  object,  the  railway  company  could  lawfully  carry 
him  on  to  the  next  stopping  place  of  that  particular  train.  In  such  a 
case  the  passenger's  liberty  would  be  for  a  certain  period  restrained, 
but  the  restraint  would  not  be  actionable,  because  it  is  an  implied  term 
of  such  a  contract  that  the  passenger  will  permit  the  restraint  of  his 
liberty  so  far  as  may  be  necessary  for  the  performance  by  the  company 
of  the  contract  of  carriage  according  to  the  time  table  of  that  train.  Or 
a  person  may  conditionally,  by  his  own  act,  place  himself  in  such  a 
position  that  he  cannot  complain  of  a  certain  restraint  of  his  liberty. 
Take  an  illustration  which  was  used  in  the  course  of  the  argument.  As- 
sume that  the  turnstiles  on  the  company's  wharf  completely  closed  the 
opening  between  the  bulklieads,  that  they  were  worked  on  the  penny 
in  the  slot  system,  and  would  not  open  except  when  a  penny,  dropped 
in  the  slot,  operated  the  mechanism.  If  under  these  circumstances  the 
plaintiff,  having  opened  the  entry  turnstile  by  his  penny  and  entered 
the  wharf,  changed  his  mind  about  crossing  in  the  company's  steam- 
ers, and  wished  to  return  at  once  to  the  street,  could  he  claim  that  he 


794      THE  BALMAIN   NEW   FERRY   CO.,  LTD.,  V.  ROBERTSON.     [CHAP.  V. 

was  not  bound  to  use  the  ordinary  means  of  opening  the  exit  turn- 
stile by  dropping  in  his  penny,  but  was  entitled  to  break  his  way 
through  it,  or  to  demand  from  the  company's  officers  that  they  should 
specially  unlock  the  apparatus  to  enable  him  to  pass  out?  If,  under 
the  circumstances,  the  officers  refused  to  comply  with  his  request, 
could  it  possibly  be  contended  that  the  company  would  be  liable  to  an 
action  for  false  imprisonment?  Prima  facie,  no  doubt,  any  restraint 
of  a  person's  liberty  without  his  consent  is  actionable.  But,  when  the 
restraint  is  referable  to  the  terms  on  which  the  person  entered  the 
premises  in  which  he  complains  he  was  imprisoned,  we  must  examine 
those  terms  before  we  can  determine  whether  there  has  been  an  im- 
prisonment which  is  actionable.  The  fallacy  in  the  plaintiflF's  legal 
position  lies  in  the  assumption  that,  immediately  he  abandoned  the 
contract  to  be  carried  to  Balmain  by  the  company's  steamer,  he  was  in 
the  same  position  as  if  the  wharf  was  one  to  which  the  public  had  free 
right  of  access,  that,  finding  his  exit  barred  by  the  turnstiles,  he  was 
entitled  either  to  squeeze  past  them,  or  to  demand  from  the  company's 
officers  that  they  should  be  specially  released  to  let  him  through. 
AYhether  that  assumption  is  or  is  not  justifiable  depends  upon  the 
terms  on  which  the  plaintiff  was  permitted  to  enter  the  wharf.  In 
ascertaining  those  terms  it  must  be  remembered  that  the  wharf  was 
not  a  place  to  which  the  public  had  free  right  of  access.  If  it  had  been 
so  no  one  could  legally  place  upon  the  wharf  any  bar  or  obstruction  to 
the  free  entry  or  exit  of  any  member  of  the  public.  But  it  was  not  a 
public  place  in  that  sense.  It  was  private  property.  No  one  had  a 
right  to  enter  there  without  the  company's  permission,  and  they 
could  impose  on  the  members  of  the  public  any  terms  they  thought  fit 
as  a  condition  of  entering  or  leaving  the  premises.  What  were  the 
terms  on  which  the  plaintiff  entered  the  company's  wharf?  There  was 
no  express  contract,  and  the  terms  must  therefore  be  implied  from  the 
circumstances.  In  dealing  with  the  circumstances  I  leave  the  question 
of  the  notice  board  out  of  consideration.  In  my  view,  it  is  immaterial 
whether  the  company  did  what  was  reasonable  to  direct  public  atten- 
tion to  the  notice,  or  whether  the  plaintiff  ever  read  it  until  his  atten- 
tion was  called  to  it  by  the  officer  at  the  turnstile.  But  as  to  the  mate- 
rial facts  from  which  the  contract  must  be  implied  there  is  no  dispute. 
The  plaintiff  was  aware  that  the  only  entrance  to  and  exit  from  jthe 
wharf  on  the  land  side  was  through  the  turnstiles,  and  that,  to  quote 
his  evidence,  "  When  the  turnstile  was  not  released  there  was  a  complete 
barrier  stretching  across  the  whole  entrance,"  in  other  words,  entrance 
to  and  exit  from  the  wharf  were  completely  barred  except  when  by  the 
action  of  the  officer  in  charge  the  turnstile  was  released.  He  also  knew 
that  the  turnstiles  were  so  constructed  as  to  admit  only  persons  enter- 
ing the  wharf  through  the  entry  turnstile,  and  only  persons  leaving  the 
wharf  through  the  exit  turnstile,  that  the  passing  through  of  every  pas- 
senger was  automatically  registered  by  the  turnstile,  and  that  the 


SLCT.   IV.]      THE   BALMAIN  NEW  FERRY  CO.,  LTD.,  V.  ROBERTSON.      795 

automatic  register  was  a  check  on  the  cash  taken  by  the  officer. 
He  himself,  in  speaking  to  one  of  the  officers,  said,  "If  it  is  the 
question  of  putting  out  the  tally  of  your  turnstiles  I  can  squeeze 
through  there,"  referring  to  the  eight  and  a  half  inch  space  before 
mentioned.  Having  traveled  on  many  occasions  backward  and  for- 
ward by  the  company's  boats,  and,  as  he  says,  paid  his  fare  to  the 
officers  at  the  turnstiles,  he  must  have  been  aware  that  the  company's 
method  of  conducting  their  business  was  to  release  the  turnstiles  only 
on  payment  of  a  penny,  and  that  in  every  case  where  there  was  a  de- 
parture from  that  method  "the  tally  of  the  turnstile,"  as  he  terms  it, 
would  be  thrown  out. 

Such  being  the  condition  of  the  company's  premises,  and  such  being 
their  method  of  carrying  on  their  business,  the  plaintiff  paid  his  penny 
to  the  officer  and  went  through  the  entry  turnstile  on  to  the  wharf. 
The  first  question  is,  what  is  the  contract  to  be  implied  from  the 
plaintiff's  payment  at  and  passing  through  the  turnstiles  under  these 
circumstances?  It  is  that  in  consideration  of  that  payment  the  com- 
pany undertook  to  carry  him  as  a  passenger  to  Balmain  by  any  of 
their  ferryboats  from  that  wharf.  That  is  the  only  contract  which 
could  be  implied  from  those  circumstances,  and  the  plaintiff  was  per- 
mitted to  enter  the  wharf  for  the  purpose  of  that  contract  being  per- 
formed. It  is  not  denied  that  the  company  were  ready  to  perform  their 
part,  but  the  plaintiff,  as  far  as  one  party  can  do  so,  rescinded  the  con- 
tract and  determined  to  go  back  from  the  wharf  to  the  street.  What 
then  were  his  rights?  They  were,  in  my  opinion,  no  more  and  no  less 
than  they  would  have  been  if  he  had  landed  from  his  own  boat  at  the 
company's  wharf.  He  was  on  private  property.  He  had  not  been  forced 
or  entrapped  there.  He  had  entered  it  of  his  own  free  will  and  with  the 
knowledge  that  the  only  exit  on  the  land  side  was  through  the  turn- 
stile, operated  as  a  part  of  the  company's  system  of  collecting  fares 
in  the  manner  I  have  mentioned.  If  he  wished  to  use  the  turnstile  as  a 
means  of  exit  he  could  only  do  so  on  complying  with  the  usual  condi- 
tions on  which  the  company  opened  them.  The  company  were  lawfully 
entitled  to  impose  the  condition  of  a  penny  payment  on  all  who  used 
the  turnstiles,  whether  they  had  traveled  by  the  company's  steamers 
or  not,  and  they  were  under  no  obligation  to  make  an  exception  in  the 
plaintiff's  favor.  The  company,  therefore,  being  lawfully  entitled  tj 
impose  that  condition,  and  the  plaintiff  being  free  to  pass  out  through 
the  turnstile  at  any  time  on  complying  with  it,  he  had  only  himself  to 
blame  for  his  detention,  and  there  was  no  imprisonment  of  which  he 
could  legally  complain.  Next,  had  he  the  right  to  force  his  way  through 
the  narrow  space  between  the  turnstile  and  the  bulkhead?  Clearly 
he  had  not.  If  the  turnstile  had  filled  the  whole  space  between  the 
bulkheads,  it  could  not  be  contended  that  the  plaintiff  would  have 
been  entitled  to  break  it  open  in  order  to  pass  through.  The  company's 
officers  were,  in  my  opinion,  entitled  to  regard  the  turnstile  as  block- 


796      HERD  V.  WEARDALE    STEEL,  COAL   <fe   COKE    CO.,  LTD.       [CHAP.  V. 

ing  the  whole  space,  not  only  for  the  necessary  protection  of  the  mechan- 
ism of  the  turnstiles  from  injury,  but  also  because  it  was  a  necessary 
part  of  their  system  of  collecting  fares  on  entry  and  exit  that  the 
turnstile  should  be  an  effective  barrier  against  entry  and  exit  of  any 
person  except  on  the  company's  conditions.  They  were,  therefore, 
entitled  to  prevent  the  plaintiff  from  squeezing  through  the  space  in 
question,  and  were  justified  in  meeting  the  plaintifiP's  forcible  attempt 
with  as  much  force  as  was  reasonably  necessary  to  defeat  it.  It  is  not 
alleged  that  they  did  more,  and  any  assault  they  may  have  committed 
on  the  plaintiff  under  these  circumstances  was  justified.  In  this  con- 
nection I  may  observe  that  it  is  not  necessary  to  determine  whether  or 
not  this  justification  is,  strictly  speaking,  open  to  the  company  on  the 
pleadings.  The  case  has  been  conducted  all  through  on  the  footing 
that  it  is  open,  and,  if  it  were  necessary,  the  court  would  make  any 
amendment  required  to  formally  shape  the  issues  in  accordance  with 
the  way  in  which  both  parties  regarded  them  at  the  trial.  .  .  .  Taking 
then,  the  whole  facts  in  this  case  together,  the  plaintiff,  in  my  opinion, 
was  not  entitled  to  succeed,  and  the  verdict  which  the  jury  returned 
in  his  favor  must  be  set  aside.  The  only  remaining  question  is,  whether 
this  court  should  grant  a  new  trial,  or  order  the  verdict  to  be  entered 
for  the  defendants.  The  court  may  make  any  order  which  the  Supreme 
Court  ought  to  have  made  in  the  first  instance.  That  court  ought,  in 
my  opinion,  to  have  directed  a  verdict  to  be  entered  for  the  defendants. 
All  the  material  facts  were  before  them  as  they  have  been  before  us. 
It  is  impossible  that  any  jury  could  on  those  facts  find  a  verdict  for  the 
plaintiff  which  could  stand  for  one  moment  if  questioned.  The  ver- 
dict ought  therefor,  to  have  been  entered  for  the  defendants,  and  this 
court  must  now  order  accordingly  that  the  verdict  for  the  plaintiff  be 
set  aside  and  judgment  be  entered  for  the  defendants. 


HERD  V.  WEARDALE  STEEL,  COAL  &  COKE  CO.,  LTD.' 

Court  of  Appeal,  1913. 
[Reported  (1913)  3  K.  B.  771.] 

Buckley,  L.  J.  The  plaintiff  is  a  coal  miner.  The  defendants  are 
the  colliery  company  in  whose  employment  he  was,  and  the  manager 
of  the  colliery  and  an  overman  at  the  colliery.  The  action  is  brought 
for  damages  for  false  imprisonment.  The  plaintiff  by  his  particulars 
says  that  the  defendants  "  by  their  orders  WTongf ully  prevented  the 
plaintiff  from  using,  and  wTongfully  refused  the  use  of,  the  said  cage 
to  the  plaintiff,  Avhereby  the  plaintiff  was  falsely  imprisoned."  The 
action  was  tried  at  Newcastle  before  Pickford,  J.,  without  a  jury,  and 
the  judgment  was  delivered  at  Leeds.    Xo  e\idence  was  called.    I  regret 


SECT.  IV.]       HERD  V.   WEARDALE  STEEL,  COAL   &   COKE    CO.,  LTD.      797 

that  that  is  so,  because  we  have  to  get  the  facts  as  best  we  can  from 
the  opening  speech  of  counsel  for  the  plaintiff,  coupled  with  some 
statements  by  way  of  admission  and  qualification  made  by  counsel 
for  the  defendants.  I  will  state  as  accurately  as  I  can  the  material 
facts  which  I  have  gathered  from  those  speeches. 

The  plaintiff  went  down  the  mine  on  a  shift  at  about  half  past  nine 
in  the  morning.  The  shift  would  be  over  and  he  would  be  entitled  to 
come  up  again  at  about  4  p.  m.  The  plaintiff  and  two  other  men  were 
ordered  to  do  certain  work.  The  men  said  that  it  was  work  which  they 
could  not  be  called  upon  to  do,  and  they  refused  to  do  it.  At  a  later 
date  it  was  determined  by  a  court  of  summary  jurisdiction  that  the 
men  were  wrong,  but  in  my  opinion  that  does  not  really  affect  this 
case.  The  result  of  the  refusal  of  these  three  men  to  work  was  that 
twenty-nine  other  men,  out  of  svTnpathy  with  them,  also  refused  to 
work.  The  men,  the  twenty-nine  and  the  three,  thereupon  made  their 
way  to  the  bottom  of  the  shaft,  and  arrived  there  at  about  eleven  o'clock. 
The  cage  was  then  and  until  one  o'clock  engaged  in  winding  coal,  and 
while  that  is  being  done  it  is  illegal  to  carry  men  in  the  cage.  At  one 
o'clock  it  ceased  to  wind  coal.  At  that  moment,  as  of  course  would 
be  the  case,  there  was  one  cage  at  the  surface  and  another  at  the 
bottom.  There  were  some  lads  at  the  surface  whom  the  manager 
desired  to  bring  down.  He  could  not  bring  them  down  except  by  hauling 
up  at  the  same  time  the  cage  which  was  at  the  bottom,  and  if  that  had 
been  done  the  plaintiff  could  have  gone  up  in  that  cage.  Eight  men 
out  of  the  twenty-nine  took  their  seats  in  the  cage,  although  I  believe 
they  were  told  not  to  do  so.  The  cage  was  not  started.  That  state  of 
things  continued  for  about  twenty  minutes.  At  the  end  of  that  time  the 
desire  to  send  the  boys  down  prevailed  over  the  desire  not  to  bring  the 
men  up.  The  plaintiff  was  told  that  if  he  liked  he  might  get  into  the 
cage  as  it  was  going  up.  The  cage  went  up,  and  he  got  to  the  surface 
and  went  away.  These,  so  far  as  I  can  gather  them,  are  the  material 
facts.  The  plaintiff  says,  "  The  cage  was,  or  ought  to  have  been,  at  my 
disposal  twenty  minutes  before  the  time  at  which  in  point  of  fact  it 
was  placed  at  my  disposal.  I  was  falsely  imprisoned  for  twenty  min- 
utes." It  makes  no  difference,  of  course,  that  it  was  only  for  a  short 
period  of  time.  If  he  was  falsely  imprisoned  for  a  time,  although  it 
may  have  been  short,  he  is  entitled  to  damages. 

The  question  for  decision  is,  were  the  defendants  guilty  of  false 
imprisonment?  Upon  that  question  there  are  two  things  to  be  deter- 
mined. First,  was  there  an  imprisonment?  If  that  be  answered  in  the 
affirmative,  the  further  question  arises,  was  it  a  false  inprisonment? 
If  the  first  question  is  answered  in  the  negative,  the  second  question  does 
not  arise.  False  imprisonment  is  wholly  a  matter  in  tort,  but,  for 
reasons  which  will  become  apparent  presently,  I  am  going  to  consider 
the  plaintiff's  rights  in  contract  as  well  as  his  rights  and  remedies  in 
tort. 


798      HERD   V.  WEAKDALE   STEEL,   COAL   &  COKE   CO.,  LTD.      [CHAP.  V. 

I  conceive  that  the  plaintiff's  rights  in  contract  were  these.  He  had 
been  taken  by  his  employers  down  the  shaft  to  his  work  to  a  place  from 
which  it  was  impossible  to  return  except  by  the  cage.  It  results,  I 
think,  that  the  law  will  imply  in  the  contract  a  term  that  he  shall  be 
restored  from  the  place  to  which  he  had  been  taken  to  the  surface  at  a 
proper  time.  It  is  said  that  that  ought  to  be  any  reasonable  time. 
That  is  only  another  way  of  saying  that  in  the  contract,  although  not 
expressed,  it  is  implied  by  law  that  the  plaintiff  shall  be  brought  back 
to  the  surface  at  such  time  as  it  must  have  been  in  the  contemplation 
of  the  contracting  parties  that  he  should  be  brought  back.  What 
would  that  include?  Obviously  it  would  include  that  when  the  plain- 
tiff's shift  was  over  he  should  be  brought  back;  also,  if  he  were  ill. 
These  are  but  instances.  It  would  include  as  an  implied  term  that  he 
should  be  brought  to  the  surface  at  any  such  time  as  it  must  have 
been  fairly  within  the  contemplation  of  the  contracting  parties  that 
he  should  be  brought  back.  But  it  would  not  include  an  implied  term 
that  he  should  be  brought  back  at  whatever  time  he  liked.  His  right 
was  to  be  brought  back  at  such  a  time  as  the  parties  must  have  con- 
templated as  a  proper  time.  After  the  plaintiff  had  been  in  the  mine  for 
a  short  time  he  committed  a  breach  of  his  contract  in  refusing  to  da 
his  work,  and  he  then  demanded  to  be  taken  to  the  surface,  a  thing 
which  was  outside  his  contract.  Being  a  person  who  had  broken  his 
contract,  he  had,  shall  I  say,  the  assurance  to  ask  his  employers  ta 
assist  him  in  carrying  that  breach  of  contract  into  effect,  that  is  to  say, 
to  assist  him  in  cutting  short  the  period  of  seven  hours  during  which 
he  ought  to  have  stayed  down,  by  taking  him  up  to  the  surface  at  that 
moment.  Obviously  there  was  no  implied  term  in  the  contract  requir- 
ing the  employers  to  do  that.  Therefore,  at  the  time  when  the  plaintiff 
desired  to  be  taken  to  the  surface  he  had  no  contractual  right  to  call 
upon  his  employers  to  afford  him  the  necessary  facilities,  and  as  far 
as  the  contract  between  the  parties  was  concerned  the  defendants 
were  entitled  to  refuse  to  do  so. 

What  were  the  plaintiff's  rights  in  tort?  In  the  words  of  Patteson, 
J.,  in  Bird  v.  Jones,  7  Q.  B.,  at  p.  751,  he  had  the  right  to  say,  "  If  one 
man  compels  another  to  stay  in  any  given  place  against  his  will,  he 
imprisons  that  other  just  as  much  as  if  he  locked  him  up  in  a  room." 
But  is  it  true  to  say  that  the  defendants  compelled  the  plaintiff  against 
his  will  to  remain  in  the  mine  and  imprisoned  him?  To  my  mind  it  is 
not.  It  is  true  that  he  could  not  leave  the  place;  but  he  was  detained 
there,  not  by  any  act  of  the  defendants,  but  by  a  certain  physical 
difficulty  arising  from  the  situation  of  the  place,  a  difficulty  which  the 
plaintiff  was,  as  between  himself  and  his  employers,  contractually 
entitled  to  call  upon  them  to  remove  for  him  at  a  time,  but  not  at  that 
time.  What  kept  him  from  getting  to  the  surface  was  not  any  act  which 
the  defendants  did,  but  the  fact  that  he  was  at  the  bottom  of  a  deep 
shaft,  and  that  there  were  no  means  of  getting  out  other  than  the  par- 


SECT.  IV.]      heed"  V.  WEARDALE   STEEL,  COAL    &    COKE    CO.,  LTD.      799 

ticular  means  which  belonged  to  his  employers  and  over  which  the 
plaintiff  had  contractual  rights  which  at  that  moment  were  not  in 
operation.  He  had  no  right  to  say  to  the  defendants  at  that  moment, 
"You  are  preventing  me  from  getting  out  of  the  mine."  The  defend- 
ants' reply  would  be,  "We  are  not  preventing  you  from  getting  out; 
get  out  by  all  means  if  you  can.  But  you  are  not  entitled  to  call  upon  us 
to  take  you  out  when  contractually,  as  between  you  and  us,  we  are  not 
bound  to  do  so.  You  are  calling  upon  us  to  assist  you  in  your  breach 
of  contract  by  taking  you  out.  We  are  bound  by  contract  to  do  so  at 
a  time,  but  not  at  this  time."  From  that  it  follows,  in  my  opinion, 
that  there  was  no  imprisonment  of  the  plaintiff  by  the  defendants. 
The  passage  from  the  judgment  of  Patteson,  J.,  in  Bird  v.  -Jones,  7 
Q.  B.,  at  p.  751,  cannot  be  read  as  if  it  said  that  if  one  man  declines  to 
give  another  man  facilities  for  leaving  a  place  which  he  desires  to  leave 
he  imprisons  him.  He  does  not  do  so.  He  imprisons  him  if  he  prevents 
him  from  leaving;  but  he  does  not  imprison  him  because  he  does  not 
assist  him  to  come  out.  The  two  propositions  are  perfectly  different, 
the  one  from  the  other. 

It  will  be  seen  from  what  I  have  said  that  there  is  in  my  view  no 
occasion  to  say  anything  as  to  the  other  part  of  the  argument,  namely, 
as  to  whether  the  plaintiff  had  committed  an  offense,  and,  if  he  had, 
whether  it  was  a  statutory  offense,  and  whether  he  was  punishable  by 
a  penalty  for  what  he  had  done.  The  defendants  do  not  contend  that 
they  were  entitled  to  imprison  the  plaintiff  because  he  had  committed 
an  offense.  The  argument  for  the  defendants  at  the  trial  was  really 
addressed  to  the  plaintiff's  rights  by  way  of  contract.  The  defendants 
were,  no  doubt,  saying,  "We  were  not  bound  to  wind  the  engine  for 
you  in  these  circumstances,  because  as  between  you  and  us  you  had 
no  right  to  go  to  the  surface.  You  ought  to  have  been  doing  your 
work."  The  defendants  did  in  that  sense  say  that  they  were  not 
going  to  assist  the  plaintiff  to  get  out;  but  they  never  said  that  they 
were  going  to  punish  the  plaintiff  for  an  offense  which  according  to  their 
view  he  had  committed.  I  will  read  two  passages  from  the  shorthand 
note  of  Mr.  Mitchell  Innes'  argument  at  the  trial  which  clearly  show 
the  position  taken  up  by  the  defendants.  He  said:  "The  company 
have  always  insisted  that  under  that  contract  they  were  entitled  to 
offer  that  man  the  cage  at  the  end  of  that  shift  and  at  no  other  time. 
He  went  down  there  under  an  agreement  to  work  for  that  length  of 
time;  that  implies  the  further  proposition  that  he  was  not  entitled  as 
of  right  to  leave  his  work  until  the  shift  was  at  an  end. "  Speaking  for 
myself,  it  appears  to  me  that  that  passage  accurately  states  the  posi- 
tion. It  is  perfectly  correct  to  say  that  under  the  contract  between  the 
plaintiff  and  his  employers  he  was  not  entitled  to  call  upon  them  to  use 
the  cage  for  him  till  he  had  performed  his  work,  or  until  some  of  the  cir- 
cumstances which  I  have  mentioned  had  arisen.  The  other  passage 
is  as  follows :  "  He  went  down  to  work  for  a  shift,  and  until  that  shift  is 


800      HERD   V.  WEARDALE    STEEL,    COAL    &   COKE    CO.,  LTD.      [CHAP.  V. 

over  he  may  not  come  up."  Of  course  that  means,  as  between  the  man 
and  his  employers,  he  may  not  come  up.  "  There  is  nothing  in  the  cir- 
cumstances of  this  case,  and  the  facts  of  this  case,  I  respectfully  submit, 
that  can  afford  foundation  for  the  proposition  that  he  has  shown  any 
title  to  ascend  by  the  cage  at  any  time  during  the  shift,  or  that  we  have 
done  anything  which  disentitles  us  to  enforce  that  term  of  our  contract 
which  entitles  us  to  refuse  him  the  cage  until  he  has  performed  his 
part  of  the  contract  and  done  his  work  for  seven  hours."  Again,  that 
is  entirely  upon  his  contractual  rights.  "He  has  shown  no  title  to 
ascend.  He  has  shown  no  right  to  call,  by  way  of  specific  performance, 
if  that  were  possible,  upon  the  master  to  wind  the  cage  for  him  because 
he  is  entitled  to  come  up.  He  has  done  nothing  which  disentitles  us  to 
enforce  that  term  of  our  contract  which  entitles  us  to  refuse  him  the 
cage." 

The  question  may  be  tested  in  another  way.  Suppose  that  at  the 
end  of  the  shift,  when  there  would  be  a  contractual  right  on  the  part  of 
the  man  to  come  up,  the  master  were  to  say  that  it  was  not  conven- 
ient to  bring  the  man  up  at  that  time  and  that  he  must  remain  in  the 
pit  for  another  hour,  the  man  would  be  entitled  to  damages  for  breach 
of  contract,  but  would  there  be  any  false  imprisonment?  In  my 
opinion  there  would  not.  The  master  has  not  imprisoned  the  man. 
He  has  not  enabled  him  to  get  out  as  under  the  contract  he  ought  to 
have  done,  but  he  has  done  no  act  compelling  him  to  remain  there. 

I  only  wish  to  add  that  if  it  were  supposed  that  in  the  judgment  which 
I  have  delivered  I  have  affirmed  in  any  degree  any  right  on  the  part  of 
the  master  to  inflict  by  way  of  punishment  upon  the  man  for  not  doing 
his  work  the  penalty  that  the  man  shall  stay  in  an  assigned  place  for  an 
assigned  time,  I  have  wholly  failed  to  convey  my  meaning.  I  mean 
nothing  of  the  sort.  The  master  has  no  right  to  compel  the  man,  by 
way  of  penalty  or  punishment,  to  suffer  an  inconvenience  by  stavnng 
down  a  mine.  That  is  not  the  question  in  this  case.  The  question  is 
whether  the  defendants  falsely  imprisoned  the  plaintiff.  To  my  mind, 
they  did  not  imprison  him,  because  they  did  not  keep  him  there;  they 
only  abstained  from  giving  him  facilities  for  getting  away. 

I  conclude  by  calling  attention  to  the  fact,  which  is  really  of  the 
essence  of  the  matter,  that  this  is  not  an  action  in  contract,  but  in  tort, 
and  in  tort  the  question  is  whether  the  defendants  did  anything  to 
compel  the  plaintiff  to  remain  in  the  mine,  and  whether  they  impris- 
oned him.  In  my  opinion  the  defendants  did  not  imprison  the  plaintiff; 
all  that  they  did  was  to  refrain  from  giA'ing  him  a  facility  which  in  the 
circumstances  they  were  not  bound  to  give  him. 

For  these  reasons  I  am  of  opinion  that  this  appeal  succeeds.^ 

1  The  concurring  opinion  of  Hamilton,  L.  J.,  and  the  dissenting  opinion  of 
Vaughax  Williams,  L.  J.,  are  omitted.  —  Ed. 


SECT,  v.]  EEGINA   V.    DADSON.  801 


SECTION  V. 

Action  in  Pursuance  of  Fermission. 

REGINA  V.  DADSON. 
Crown  Case  Reserved.     1850. 

[Reported  4  Cox  C.  C.  358.] 

The  prisoner  was  tried  and  convicted  before  Erle,  J.,  at  the  last 
Maidstone  Assizes,  but  tlie  learned  judge,  entertaining  some  doubt  as 
to  the  propriet}'  of  the  conviction,  reserved  the  following  case  :  — 

George  Dadson  was  indicted  for  shooting  at  William  Waters,  with 
intent  to  do  him  grievous  bodily  harm.  It  appeared  that  he,  being  a 
constable,  was  employed  to  guard  a  copse,  from  which  wood  had  been 
stolen,  and  for  this  purpose  carried  a  loaded  gun.  From  this  copse  he 
saw  the  prosecutor  come  out,  carrying  wood,  which  he  was  stealing, 
and  called  to  him  to  stop.  The  prosecutor  ran  away,  and  the  prisoner, 
having  no  other  means  of  bringing  him  to  justice,  fired,  and  wounded  ^ 

him  in  the  leg.  These  were  the  facts  on  which  the  prisoner  acted.  It  *y*^ 
was  alleged  in  addition  that  AVaters  was  actually  committing  a  felon}',  /  -^ 
he  having  been  before  convicted  repeatedly  of  stealing  wood,  but  these 
convictions  were  unknown  to  the  prisoner,  nor  was  there  any  reason 
for  supposing  that  he  knew  the  difference  between  the  rules  of  law 
relating  to  felony  and  those  relating  to  less  oflences.  I  told  the  jury 
that  shooting  with  intent  to  wound  amounted  to  the  felony  charged, 
unless  from  other  facts  there  was  a  justification  ;  and  that  neither  the 
belief  of  the  prisoner  that  it  was  his  duty  to  fire  if  he  could  not  other- 
wise apprehend  the  prosecutor,  nor  the  alleged  felon}',  it  being  unknown 
to  him,  constituted  such  justification.  Upon  this  the  prisoner  was  con- 
victed of  felony,  and  let  out  on  his  recognizances  to  come  up  for  judgment, 
if  required.  I  have  to  request  the  opinion  of  the  judges  whether  this 
conviction  was  right. 

[This  case  stood  for  argument  on  Wednesday,  November  20,  but  no 
counsel  were  instructed.  For  the  legal  distinction  adverted  to  in  the 
case  with  regard  to  the  apprehension  of  felons  and  misdemeanants  only, 
see  1  Hale,  481  •  4  Bl.  Com.  179  ;  Fost.  271  ;  R.  v.  Smith,  1  Russ.  on 
Cr.  546.]  Cur.  adv.  vult. 

Pollock,  C.  B.,  delivered  the  judgment  of  the  court.  (After  stating 
the  facts  as  above.)  We  are  all  of  opinion  that  the  conviction  is  right. 
The  prosecutor  not  having  committed  a  felony  known  to  the  prisoner 
at  the  time  when  he  fired,  the  latter  was  not  justified  in  firing  at  the 
prosecutor  ;  and  having  no  justifiable  cause,  he  was  guilty  of  shooting 
at  the  prosecutor  with  intent  to  do  him  grievous  bodily  harm,  and  the 
convection  is  right.  Convictioti  affirmed. 


802  STKANG  V.   KUSSELL.  [CHAP.  V. 


STRANG  V.  RUSSELL. 
Supreme  Court  of  New  Zealand,  1904. 

[Reported  24  A".  Z.  L.  R.  916.] 

Cooper,  J.  This  is  an  action  in  which  the  plaintiff  claims  to  recover 
from  the  defendant  damages  for  trespass  alleged  by  the  plaintiff  to 
have  been  committed  by  the  defendant  upon  a  small  \ake  or  lagoon 
known  as  the  Hokowhitee  Lagoon,  at  Palmerston  North,  and  claimed 
by  the  plaintiff  as  his  property.^ 

The  defendant  ...  in  cross-examination  by  Dr.  Findlay  said  that 
he  had  been  accustomed  to  boat  on  the  lagoon  for  over  three  years,  and 
had  not  been  warned  by  Strang,  although  he  had  often  met  him  on  the 
lagoon;  and  that  he  had  not  up  to  the  4th  of  September  received  any 
notice  from  Strang  that  he  claimed  the  right  to  exclude  him  from  the 
use  of  the  lagoon.  He  also  said  that  on  the  Sunday  succeeding  the  4th 
of  September  he  saw  Strang,  and  that  Strang  said  to  him,  "  You  are  at 
liberty  to  go  on  the  lagoon  whenever  you  like,  Russell,  or  any  other 
respectable  person." 

One  of  the  defenses  submitted  on  behalf  of  the  defendant  was  that, 
even  if  the  plaintiff  owned  the  bed  of  the  lagoon  and  had  the  right 
to  exclude  others  from  boating  upon  it,  the  defendant  had  the  plaintiff's 
implied  leave  and  license  to  go  on  the  lagoon  on  the  4th  of  September, 
that  that  leave  and  license  had  not  been  withdrawn,  and  that  there- 
fore no  trespass  had  been  committed.  But,  in  my  opinion,  this  defense 
cannot  prevail.  The  defendant,  in  going  on  the  lagoon  on  the  4th  of 
September  with  Bell,  went  there,  according  to  his  own  admission,  not 
because  of  any  leave  or  license  which  may  have  been  given  to  him  by 
the  plaintiff,  but  under  a  claim  of  right  to  do  so  as  a  riparian  proprietor, 
having  found  out  that  the  plaintiff  claimed  to  have  bought  the  lagoon, 
and  for  the  express  purpose  of  contesting  the  plaintiff's  legal  right  to 
ownership  of  the  bed  of  the  lagoon.  He,  in  fact,  proceeded  on  the  4th 
of  September  along  the  lagoon  not  in  pursuance  of  any  implied  per- 
mission given  to  him  by  the  plaintiff,  but  in  the  exercise  of  a  presumed 
legal  right  adverse  to  the  plaintiff's  claim  as  an  owner,  and  with  the 
intention  of  contesting  the  plaintiff's  right  as  alleged  owner  of  the 
lagoon. 

1  Part  of  the  opinion  only  is  given.  —  Ed. 


SECT,  v.]  THE  SIX  CARPENTERS'  CASE.  803 


THE  SIX  CARPENTERS'   CASE. 
King's  Bench,  1610. 

[Reported  8  Co.  146  a.] 

In  trespass  brought  by  John  Vaux  against  Thomas  Newman,  car- 
penter, and  five  other  carpenters,  for  breaking  his  house,  and  for  an 
assault  and  battery,  1  Sept.  7  Jac.  in  London,  in  the  parish  of  St.  Giles 
extra  Cripplegate,  in  the  ward  of  Cripplegate,  &c.  and  upon  the  new 
assignment,  the  plaintiff  assigned  the  trespass  in  a  house  called  the 
Queen's  Head.  The  defendants  to  all  the  trespass  proeter  fradionem 
domus  pleaded  not  guilty;  and  as  to  the  breaking  of  the  house,  said, 
that  the  said  house  ■prced'  tempore  quo,  &c.  ct  diu  antea  et  postea, 
was  a  common  Wine  Tavern,  of  the  said  John  Vaux,  with  a  common 
sign  at  the  door  of  the  said  house  fixed,  &c.  by  force  whereof  the  de- 
fendants, procd'  tempore  quo,  &c.  viz.  hora  quarta  post  meridiem  into  the 
said  house,  the  door  thereof  being  open,  did  enter,  and  did  there  buy 
and  drink  a  quart  of  wine,  and  there  paid  for  the  same,  &c.  The 
plaintifP,  by  way  of  replication,  did  confess,  that  the  said  house  was  a 
common  tavern,  and  that  they  entered  into  it,  and  bought  and  drank  a 
quart  of  wine,  and  paid  for  it :  but  further  said,  that  one  John  Ridding, 
servant  of  the  said  John  Vaux,  at  the  request  of  the  said  defendants, 
did  there  then  deliver  them  another  quart  of  wine,  and  a  pennyworth 
of  bread,  amounting  to  Sd.  and  then  they  there  did  drink  the  said 
wine,  and  eat  the  bread,  and  upon  request  did  refuse  to  pay  for  the 
same:  upon  which  the  defendants  did  demur  in  law:  and  the  only 
point  in  this  case  was,  if  the  denying  to  pay  for  the  wane,  or  non-pay- 
ment, which  is  all  one  (for  every  non-payment  upon  request,  is  a 
denying  in  law)  makes  the  entry  into  the  tavern  tortious. 

And,  first,  it  was  resolved  when  an  entry,  authority,  or  license, 
is  given  to  any  one  by  the  law,  and  he  doth  abuse  it,  he  shall  be  a 
trespasser  ah  initio:  but  where  an  entry,  authority,  or  license,,  is 
given  by  the  party,  and  he  abuses  it,  there  he  must  be  punished  for 
his  abuse,  but  shall  not  be  a  trespasser  ab  initio.  And  the  reason  of 
this  difference  is,  that  in  the  case  of  a  general  authority  or  license 
of  law,  the  law  adjudges  by  the  subsequent  act,  quo  animo,  or  to  what 
intent,  he  entered;  for  acta  exterior  a  indicant  interior  a  seer  eta.  Vide 
11  H.  4.  75  b.  But  when  the  party  gives  an  authority  or  license  him- 
self to  do  any  thing,  he  cannot,  for  any  subsequent  cause,  punish  that 
which  is  done  by  his  own  authority  or  license.  And  therefore  the  law 
gives  authority  to  enter  into  a  common  inn,  or  tavern,  so  to  the  lord 
to  distrain;  to  the  owner  of  the  ground  to  distrain  damage-feasant; 
to  him  in  reversion  to  see  if  waste  be  done;  to  the  commoner  to  enter 


~> 


804  OXLEY    V.   WATTS.  [CHAP.  V. 

upon  the  land  to  see  his  cattle,  and  such  like.  Vide  12  E.  4.  8  b.  21 
E.  4.  19  b.  5H.  7.  11  a.  9  H.  6.  29  b.  11  H.  4.  75  b.  3  H.  7.  15  b. 
28  H.  6.  5  b.  But  if  he  who  enters  into  the  inn  or  tavern  doth  a  tres- 
pass, as  if  he  carries  away  any  thing;  or  if  the  lord  who  distrains 
for  rent,  or  the  owner  for  damage-feasant,  works  or  kills  the  dis- 
tress; or  if  he  who  enters  to  see  waste  breaks  the  house,  or  stays 
there  all  night;  or  if  the  commoner  cuts  down  a  tree,  in  these  and 
the  like  cases,  the  law  adjudges  that  he  entered  for  that  purpose;  and 
because  the  act  which  demonstrates  it  is  a  trespass,  he  shall  be  a  tres- 
passer ab  initio,  as  it  appears  in  all  the  said  books.  So  if  a  purveyor 
takes  my  cattle  by  force  of  a  commission,  for  the  King's  house,  it  is 
lawful:  but  if  he  sells  them  in  the  market,  now  the  first  taking  is 
wrongful;  and  therewith  agrees  18  H.  6.  19  b.    Et  sic  de  similibus. 

2.  It  was  resolved  per  totam  curiam,  that  not  doing,  cannot  make 
the  party  who  has  authority  or  license  by  the  law  a  trespasser  ah  initio, 
because  not  doing  is  no  trespass;  and,  therefore,  if  the  lessor  distrains 
for  his  rent,  and  thereupon  the  lessee  tenders  him  the  rent  and  arrears, 
&c.  and  requires  his  beasts  again,  and  he  will  not  deliver  them,  this  not 
doing  cannot  make  him  a  trespasser  ah  initio;  and  therewith  agrees 
33  H.  6.  47  a.  So  if  a  man  takes  cattle  damage-feasant,  and  the  other 
offers  sufficient  amends,  and  he  refuses  to  re-deliver  them,  now  if  he 
sues  a  Replevin,  he  shall  recover  damages  only  for  the  detaining 
of  them,  and  not  for  the  taking,  for  that  was  lawful;  and  therewith 
agrees  F.  N.  B.  69  g.  fettii>.  E.  1.  Replevin  27.  27  E.  3.  88.  45  E.  3.  9. 
So  in  the  case  at  bar,  for  not  paying  for  the  wine,  the  defendants 
shall  not  be  trespassers,  for  the  denying  to  pay  for  it  is  no  trespass, 
and  therefore  they  cannot  be  trespassers  ab  initio;  and  therewith 
agrees  directly  in  the  point  12  Edw.  4.  9b,  For  there  Pigot,  Serjeant, 
puts  this  very  case,  if  one  comes  into  a  tavern  to  drink,  and  when  he 
has  drunk  he  goes  away,  and  will  not  pay  the  taverner,  the  taverner 
shall  have  an  action  of  trespass  against  him  for  his  entry.  To  which 
Brian,  C.  J.,  said,  the  said  case  which  Pigot  has  put,  is  not  law,  for  it 
is  no  trespass,  but  the  taverner  shall  have  an  action  of  debt. 


OXLEY   V.   WATTS. 
King's  Bench,  1785. 

[Reported  1  T.  R.  12.] 

This  was  an  action  of  trespass  for  taking  a  horse,  tried  before  Lord 
Mansfield,  at  the  last  Summer  Assizes,  at  Maidstone. 

The  defendant,  as  bailiff  of  Lord  Dartmouth,  lord  of  the  manor  of 
A.,  justified  taking  the  said  horse  as  an  estray. 


SECT,  v.]  ALLEN  V.    CROFOOT.  805 

Replication,  that  after  the  taking  mentioned  in  the  declaration,  the 
defendant  worked  the  ,said  horse,  and  so  became  a  trespasser  ab 
initio. 

Erskine  now  moved  to  set  aside  the  verdict  which  had  been  obtained 
by  the  plaintiff,  on  the  ground  that  this  should  have  been  an  action 
on  the  case  for  the  consequential  damage,  and  not  an  action  of  tres- 
pass, because  the  original  taking  was  admitted  to  be  lawful. 

But  per  curiam,  The  subsequent  usage  is  an  aggravation  of  the 
trespass  in  taking  the  horse;  for  the  using  made  him  a  trespasser  ab 
initio.  Vid.  Taylor  v.  Cole,  3  T.  R.  292. 

Rule  refused. 


ALLEN  V.   CROFOOT. 
Supreme  Court,  New  York,  1830. 

[Reported  5  Wend.  506.] 

Error  from  the  Cortland  common  pleas.  Crofoot  sued  Allen  in  a 
justice's  court,  and  declared  against  him  in  trespass  for  entering  his 
house  in  his  absence  and  obtaining  copies  of  papers  for  the  purpose  of 
commencing  a  suit  against  him.  The  defendant  pleaded  the  general 
issue  and  license  to  enter  the  house.  The  cause  was  tried]  byj  a  jury, 
who  found  a  verdict  for  the  plaintiff  for  S50,  for  which  sum  and  the 
costs  of  suit  (as  stated  in  the  return)  the  justice  gave  judgment.  The 
defendant  appealed  to  the  Cortland  common  pleas,  and  on  the  trial  in 
that  court  the  following  facts  appeared :  There  had  been  an  arbitration 
between  one  Parsons  and  Crofoot,  and  an  award  had  been  made  in  favor 
of  Parsons.  Allen  was  the  attorney  of  Parsons,  and  on  receiA'ing  from 
Crofoot  the  sum  of  money  awarded,  delivered  up  to  him  his  bond  and 
the  award.  At  the  time  of  payment,  something  was  said  about  fur- 
ther claims  that  Parsons  had  against  Crofoot,  which  the  latter  said  he 
would  not  pay.  After  this,  it  seems  that  Allen  thought  he  had  done 
wrong  in  delivering  up  the  bond  and  award,  and  went  to  the  house  of 
Crofoot  in  his  absence  to  take  copies  of  the  bond  and  award,  under  the 
pretense  that  he  was  subpoenaed  as  a  witness  and  wanted  to  refresh  his 
memory  as  to  the  transactions,  when  in  fact  his  object  was  to  obtain 
copies  for  the  purpose  of  commencing  a  suit  against  Crofoot,  which 
subsequently  was  commenced.  This  excuse  he  made  to  a  brother-in- 
law  of  the  plaintiff,  to  prevent  him  from  taking  the  papers  from  him; 
the  brother-in-law  having  gone  into  the  room  where  he  was  copying 
the  papers,  at  the  request  of  the  plaintiff's  wife,  who  was  greatly  agi- 
tated.   It  was  shown  that  the  defendant  had  admitted  that  he  would  not 


806  ALLEN   V.    CROFOOT.  [CHAP.   V. 

have  got  the  copies  had  he  not  practised  a  deception  upon  the  plain- 
tiff's wife  and  brother-in-law,  and  that  he  went  to  the  plaintiff's  house 
in  his  absence,  knowing  that  had  he  been  at  home  he  could  not  have 
obtained  copies  of  the  papers.  It  further  appeared,  that  when  he  went 
to  the  house  of  the  plaintiff,  the  defendant  knocked  at  the  door  and 
was  bidden  to  come  in ;  and  that  he  was  on  terms  of  intimacy  with  the 
plaintiff,  and  in  the  habit  of  resorting  to  his  house.  The  court  charged 
the  jury,  that  if  they  should  be  of  opinion  that  the  defendant  had  acted 
unfairly  or  improperly  in  obtaining  copies  of  the  papers,  and  had  gone 
to  the  plaintiff's  house  with  the  intention  of  fraudulently  obtaining  such 
copies,  though  he  had  leave  to  enter  the  house,  they  should  find  for  the 
plaintiff;  but  if  he  acted  correctly  and  openly,  and  had  leave  to  enter 
the  house,  they  should  find  for  the  defendant.  The  defendant  excepted 
to  this  charge,  and  the  jury  found  a  verdict  for  the  plaintiff  with  S75 
damages.     The  defendant  sued  out  a  WTit  of  error.^ 

Savage,  C.  J.  It  is  also  urged  by  the  plaintiff  in  error,  that  the 
court  below  erred  in  charging  the  jury  that  the  action  was  sustainable, 
if  they  should  find  that  the  defendant  entered  the  plaintiff's  house 
fraudulently,  to  obtain  improperly  copies  of  papers  in  the  absence  of 
the  plaintiff.  It  was  decided  in  The  Six  Carpenters'  Case,  4  Co.  290, 
that  where  an  authority  to  enter  upon  the  premises  of  another  is 
given  by  law,  and  it  is  subsequently  abused,  the  party  becomes  a  tres- 
passer ah  initio;  but  where  such  authority  or  license  is -given  by  the 
party,  and  it  is  subsequently  abused,  the  party  guilty  of  the  abuse  may 
be  punished;  but  he  is  not  a  trespasser;  and  the  reason  of  the  difference 
is  said  to  be,  that  in  case  of  a  license  by  law,  the  subsequent  tortious 
act  shows  quo  animo  he  entered;  and  having  entered  with  an  intent  to 
abuse  the  authority  given  by  law,  the  entry  is  unlawful;  but  where 
the  authority  or  license  is  given  by  the  party,  he  cannot  punish  for 
that  which  was  done  by  his  own  authority.  Whether  this  is  not  a  dis- 
tinction without  a  difference  of  principle,  it  is  not  necessary  to  inquire. 
A  better  reason  is  given  for  it  in  Bacon's  Abr.  tit.  Trespass,  B.  Where 
the  law  has  given  an  authority,  it  is  reasonable  that  it  should  make 
void  everything  done  by  the  abuse  of  that  authority,  and  leave  the 
abuser  as  if  he  had  done  everything  without  authority.  But  where  a 
man,  who  was  under  no  necessity  to  give  an  authority,  does  so,  and  the 
person  receiving  the  authority  abuses  it,  there  is  no  reason  why  the 
law  should  interpose  to  make  void  everything  done  by  such  abuse,  be- 
cause it  was  the  man's  folly  to  trust  another  with  an  authority  who  was 
not  fit  to  be  trusted  therewith.  It  is  contended  that  the  license  being 
obtained  by  fraud  was  void.  The  defendant  knocked  at  the  door  and 
was  told  to  walk  in;  he  was  found  coppng  certain  papers;  but  how  he 
obtained  them,  on  what  representation,  or  from  whom,  the  evidence 
does  not  disclose.  One  witness  does  indeed  testify  that  he  said  he  would 
not  have  got  the  copies,  if  he  had  not  practised  a  deception  on  the  wife 

'  Part  of  the  case,  invohnng  the  legality  of  the  appeal  bond,  is  omitted.  —  Ed. 


SECT.  VI.]  SAMUEL    V.    PAYNE.  807 

and  brother-in-law  of  the  plaintiff.  If  this  declaration  should  be  con- 
sidered evidence  of  his  having  made  improper  representations  to  obtain 
the  papers,  then  the  question  arises,  does  he  thereby  become  a  tres- 
passer ah  initiof 

It  has  been  decided  that  to  enter  a  dwelling  house  without  license, 
is  in  law  a  trespass,  12  Johns.  R.  408,  and  that  possession  of  property 
obtained  fraudulently  confers  no  title.  Under  such  circumstances  no 
change  of  property  takes  place,  15  Johns.  R.  186;  and  it  is  argued  that 
as  fraud  \'itiates  everything  into  which  it  enters,  a  license  to  enter  the 
house  fraudulently  obtained  is  void,  and  is  no  license.  The  principle 
of  relation  has  never  been  applied  to  such  a  case,  nor  is  it  necessary  for 
the  purposes  of  justice  to  extend  it  farther  than  to  cases  where  the 
person  enters  under  a  license  given  hira  by  law.  In  such  cases,  as  the 
party  injured  had  not  the  power  to  prevent  the  injury,  it  seems  reason- 
able that  he  should  be  restored  to  all  his  remedies. 

The  judgment  must  be  reversed  without  costs,  and  a  venire  de  novo 
awarded  by  Cortland  common  pleas. 


SECTION   VI. 

Action  under  Mistake  as  to  Permission. 

SAMUEL  V.   PAYNE. 
Court  of  King's  Bench,  1780. 

[Reported  1  Doug.  359.] 

Action  of  trespass  and  false  imprisonment,  against  Payne,  a  con- 
stable, and  two  others.  The  facts  of  the  case  were  these:  Hall,  one 
of  the  defendants,  charged  the  plaintiff  with  ha\ang  stolen  some  laces 
from  him,  which  he  said  were  in  the  plaintiff's  house.  A  search  war- 
rant was  granted  by  a  justice  of  peace  upon  this  charge,  but  there  was 
no  warrant  to  apprehend  him.  On  the  search,  the  goods  were  not 
found;  however,  Payne,  Hall,  and  the  other  defendant,  an  assistant  of 
Payne's,  arrested  the  plaintiff,  and  carried  him  to  the  Poultry  Compter 
on  a  Saturday,  when  no  alderman  was  sitting,  by  which  means  he  was 
detained  till  Monday,  when,  after  examination,  he  was  discharged.  The 
cause  was  tried  before  Lord  Mansfield,  and  a  verdict  found  against  all 
the  three  defendants.  At  the  trial,  his  Lordship,  and  the  counsel  on  l)oth 
sides,  lookefl  upon  the  rule  of  law  to  be,  that,  if  a  felony  has  actually 
been  committed,  any  man,  upon  reasonable  probable  grounds .trf- sus- 
picion, may  justify  apprehending  the  suspected  person  to  carry  him 


808  ELDER   V.    MORRISON.  [CHAP.  V. 

before  a  magistrate;  but  that,  if  no  felony  has  been  committed,  the 
apprehension  of  a  person  suspected  cannot  be  justified  by  anybody. 
His  Lordship  therefore  left  it  to  the  jury  to  consider,  whether  any 
felony  had  been  committed.  The  rule,  however,  was  considered  as 
inconvenient  and  narrow;  because,  if  a  man  charges  another  with  felony, 
and  requires  an  officer  to  take  him  into  custody,  and  carry  him  before 
a  magistrate,  it  would  be  most  mischievous  that  the  officer  should  be 
bound  first  to  try,  and  at  his  peril  exercise  his  judgment  on  the  truth, 
of  the  charge.  He  that  makes  the  charge  should  alone  be  answerable. 
The  officer  does  his  duty  in  carrying  the  accused  before  a  magistrate, 
who  is  authorized  to  examine,  and  commit  or  discharge. 

On  this  ground,  a  motion  was  made  for  a  new  .trial,  and,  after  cause 
shown,  the  court  held,  that  the  charge  was  a  sufficient  justification  to 
the  constable  and  his  assistants,  and  cited  Ward's  Case  in  Clayton, 
(Clayt.  44.  pi.  76)  2  Hale's  Pleas  of  the  Crown,  84,  89,  91,  and  2 
Hawkins,  B.  2,  c.  12,  and  c.  13.^  v 

The  rule  made  absolute.^ 


ELDER  V.  MORRISON. 
Supreme  Court,  New  York,  1833. 

[Reported  10  Wend.  128.]  ' 

Error  from  the  Orange  common  pleas.  Morrison  sued  Elder  in 
an  action  of  assault  and  battery.  The  defendant  pleaded  the  general 
issue,  and  gave  notice  of  special  matter.  On  the  trial,  the  following 
facts  appeared :  The  plaintiff,  on  the  premises  of  one  Milburn,  offered 
for  sale  two  horses  at  public  auction,  in  pursuance  of  a  previous  notice. 
Woodward,  a  constable  of  Walkill,  having  in  his  hands  a  justice's 
execution  against  Milburn,  was  present  and  forbade  the  sale,  claiming 
the  horses  under  the  execution  and  demanding  possession  of  them, 
which  the  plaintiff  refused  to  yield.  Woodward  demanded  assistance 
from  the  bystanders;  no  one  obeying  him,  he  called  upon  the  defend- 
ant by  name  to  assist  him  in  obtaining  possession  of  the  horses,  and 

1  None  of  these  authorities  come  exactly  up  to  the  present  case,  which  is  there- 
fore the  first  determination  of  the  point.  In  Ward's  Case  (which  is  very  loosely 
reported),  it  would  seem,  that  the  goods  had  been  actually  stolen.  The  very  point 
of  this  case  had  been  agitated  on  a  demurrer  to  a  special  justification,  so  long  ago 
as  the  reign  of  Hen.  IV.  (Year  Book,  7  Hen.  IV.  p.  'So.  pi.  3)  and  the  court  seems 
to  have  thought,  that,  if  the  cause  of  suspicion  should  appear  reasonable,  the  justifi- 
cation would  be  good,  though  no  felony  were  committed.  But  the  case  was  adjourned 
{vide  Ledwdck  r.  Catchpole,  B.  R.  E.  23  Geo.  III.    Cald.  291). 

-  The  new  trial  came  on  before  Lord  Mansfield,  at  the  sittings  after  this  term, 
when  a  verdict  was  found  against  Hall,  and  for  the  other  two  defendants. 


SECT.  VI.]  ELDER   V.    MORRISON.  809 

threatened  him  with  legal  proceedings  if  he  did  not  obey.  Woodward 
succeeded  in  obtaining  possession  of  one  of  the  horses,  and  then  he, 
the  plaintiff,  and  the  defendant  went  into  the  stable  where  the  other 
horse  was,  upon  which  a  struggle  ensued  as  to  who  should  have  the 
possession  of  that  horse,  in  the  course  of  which  the  defendant  jerked 
the  plaintiff  about,  who  had  hold  of  a  halter  which  was  upon  the  horse, 
elbowed  him  and  threw  him  down,  which  was  the  assault  and  battery 
complained  of.  The  defendant,  under  the  notice  attached  to  his  plea, 
proved  the  rendition  of  a  judgment  against  Milburn,  the  issuing  of  an 
execution  thereon,  and  a  delivery  of  the  WTit  to  Woodward,  and  that 
by  virtue  thereof  and  of  another  execution  subsequently  received. 
Woodward,  who  was  indemnified  by  the  plaintiff  in  the  execution,  sold 
the  horses.  At  the  time  of  the  levy,  Woodward  inquired  of  Milburn 
where  his  horses  were,  who  pointed  out  the  horses  in  question.  The 
plaintiff  offered  to  prove  that  he  was  the  owner  of  the  horses  at  the  time 
of  the  taking  by  Woodward,  which  evidence  was  objected  to  by  the 
defendant,  but  the  objection  was  overruled  and  the  evidence  received; 
to  which  decision  the  defendant  excepted.  The  jury  found  a  verdict 
for  the  plaintiff  with  $25  damages,  on  which  judgment  was  rendered. 
The  defendant  sued  out  a  writ  of  error. 

Savage,  C.  -J.  For  the  plaintiff  in  error,  it  is  argued  that  the  officer, 
when  indemnified  by  the  plaintiff  in  the  execution,  is  bound  to  sell  the 
property;  and  that  by  the  Revised  Statutes,  2.  R.  S.  441,  §80,  it  is 
enacted  that  when  a  sheriff  or  other  public  officer  shall  find  resistance, 
or  have  reason  to  apprehend  it  in  the  execution  of  any  process  deliv- 
ered-to  him,  he  may  command  every  male  inhabitant  of  his  county, 
or  as  many  as  he  shall  think  proper,  to  assist  him  in. overcoming  such 
resistance,  and  in  seizing  and  confining  the  resisters.  The  statute  fur- 
ther requires  that  the  officer  shall  certify  to  the  court,  from  which  the 
process  issued,  the  names  of  the  resisters,  to  the  end  that  they  may  be 
punished  for  their  contempt  of  such  court.  Id.  §  81.  And  it  is  enacted 
that  every  person  commanded  by  an  officer  to  assist  him,  who  shall 
refuse  without  lawful  cause,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  subject  to  fine  and  imprisonment.  Id.  §  82.  The  inference  drawn 
by  the  counsel  for  the  plaintiff  in  error  from  these  premises  is,  that  the 
person  who  comes  in  aid  of  an  officer  to  overcome  resistance,  is  justified, 
whether  the  officer  is  or  not  justified;  and  that  the  question  of  title  to 
the  property  was  not  a  proper  subject  of  inquiry-.  On  the  part  of  the 
defendant  in  error,  it  is  contended  that  if  the  principal  be  a  trespasser, 
all  persons  acting  in  his  aid  or  by  his  command  are  also  trespassers; 
that  the  fair  meaning  of  the  statute  is,  that  tlie  officer  shall  be  aided 
in  the  lawful  execution  of  his  process,  and  that  such  process  must  be 
against  the  individual  whose  person  or  property  is  attempted  to  be 
seized;  that  the  process  to  authorize  a  justification  must  be  against 
the  person  in  possession  of  the  property  taken. 

It  is  certainly  true  that  if  the  officer  be  guilty  of  a  trespass,  those  who 


810  ELDEK   V.    MORRISON.  [CHAP.  V. 

act  by  his  command  or  in  his  aid  must  be  trespassers  also,  unless  they 
are  to  be  excused  in  consequence  of  the  provision  of  the  revised  statutes. 
If  a  stranger  comes  in  aid  of  an  officer  in  doing  a  lawful  act,  as  executing 
legal  process,  but  the  officer,  by  reason  of  some  subsequent  improper 
act,  becomes  a  trespasser  ab  initio,  the  stranger  does  not  thereby  become 
a  trespasser,  Cro.  EHz.  181;  Cro.  Car.  446;  but  when  the  original  act 
of  the  officer  is  unlawful,  any  stranger  who  aids  him  will  be  a  trespasser, 
though  he  acts  by  the  officer's  command.  Oystead  v.  Shed,  12  Mass. 
R.  511.  The  case  in  Massachusetts,  just  cited,  was  an  action  of  tres- 
pass de  bonis  asportatis  against  Shed  and  three  others;  Shed  and  Fletcher 
justified  as  officers  under  writs  of  attachment,  the  two  other  defendants 
justified  as  servants  of  Fletcher;  the  plaintiff  replied,  and  the  de- 
fendants demurred  to  the  replications.  The  court  adjudged  Fletcher's 
plea  bad,  and  the  justification  of  the  other  two  defendants  failed  of 
course;  and  their  ignorance  of  the  law,  it  was  said,  would  not  excuse 
their  conduct  or  diminish  in  any  degree  the  injury  which  the  plaintiff 
sustained.  The  case  of  Leonard  v.  Stacey,  6  Mod.  140,  is  to  the  same 
effect.  That  was  an  action  of  trespass  for  entering  the  plaintiff's 
house  and  taking  away  his  goods.  The  defendant  justified  that  he 
came  in  aid  of  an  officer  in  execution  of  a  writ  of  replevin.  The  plaintiff 
replied  that  he  claimed  property  in  the  goods,  and  gave  notice  to  the 
defendant  before  their  removal.  The  court  held  the  defendant  was  a 
trespasser  ab  iniiio,  for  though  the  claim  should  be  made  to  the  sheriff, 
yet  if  it  be  notified  to  him  who  comes  in  aid  that  claim  is  made,  he 
ought  to  desist  at  his  peril;  thereby  establishing  the  proposition,  that 
if  the  officer  is  a  trespasser,  all  those  who  act  by  his  command  or  in 
his  aid  are  also  trespassers.  Whenever  a  sheriflt  or  constable  has  power 
to  execute  process  in  a  particular  manner,  his  authority  is  a  justification 
to  himself  and  all  who  come  in  his  aid;  but  if  his  authority  is  not  suf- 
ficient to  justify  liim,  neither  can  it  justify  those  who  aid  him.  He 
has  no  power  to  command  others  to  do  an  unlawful  act;  they  are  not 
bound  to  obey,  neither  by  the  common  law  nor  the  statute,  and  if  they 
do  obey,  it  is  at  their  peril.  They  are  bound  to  obey  when  his  com- 
mands are  lawful,  otherwise  not.  The  only  hardship  in  the  case  is, 
that  they  are  bound  to  know  the  law.  But  that  obligation  is  universal ; 
ignorance  is  no  excuse  for  any  one.  The  counsel  for  the  plaintiff  in 
error  insists  that  there  is  a  difference  between  aiding  in  the  original 
taking  and  in  overcoming  resistance.  It  seems  to  me  there  is  no  such 
distinction.  If  the  taking  was  lawful,  the  resistance  was  unlawful; 
but  if  the  taking  was  unlawful,  the  resistance  was  lawful.  If  the  re- 
sistance was  lawful,  neither  the  officer  nor  those  he  commands  to  assist 
him  can  lawfully  overcome  that  resistance.  Nor  does  the  fact  of  the 
officer's  being  indemnified,  confer  on  him  any  authority  which  he  had 
not  without  such  indemnity;  he  may  thereby  be  compelled  to  do  an 
illegal  act  in  selling  the  property  of  strangers  to  the  execution,  but  he 
is  a  trespasser  in  doing  so,  as  are  all  others  who  aid  him. 


SECT.  VI.]  WATSON   V.    STATE.  811 

In  any  view  of  the  subject  which  I  can  take,  I  am  of  opinion  that  the 
decision  of  the  court  of  common  pleas  was  correct,  and  the  judgment 
should  be  aflSrmed.^ 

Judgment  affirmed. 


WATSON  V.  STATE. 
Supreme  Court  of  Alabama,  1887. 

[Reported  83  Ala.  60.] 

Clopton,  J.  The  defendant  was  con\'icted  on  a  charge  of  having 
committed  an  assault  and  battery  on  Harrison  Ward.  The  only 
material  question  presented  by  the  record,  is  whether  the  defendant  is 
guilty  of  the  offense  charged,  if  he,  without  doing  more,  and  using 
no  excess  of  force,  merely  arrested,  secured,  and  delivered  him  to  the 
deputy-sheriff,  who  a  few  moments  previously  had  called  on  the  de- 
fendant to  assist  in  making  the  arrest,  informing  him  that  he  had  a 
warrant  for  Ward's  arrest,  but  in  fact  had  no  such  warrant,  haA'ing 
mistaken  him  for  another  person  of  the  same  surname,  but  different 
christian  name. 

By  section  4666  of  Code  of  1876,  it  is  made  the  duty  of  every  person, 
when  required  to  do  so  by  an  officer,  to  assist  him  in  making  an  arrest; 
and  by  section  4139,  it  is  made  a  criminal  offense,  to  refuse  or  neglect 
to  obey  the  command  of  any  sheriff,  constable,  or  other  officer  having 
authority,  when  summoned  or  commanded  to  assist  such  officer  in 
making  an  arrest. 

Any  officer,  authorized  by  law  to  make  arrests,  is  empowered  to 
summon  or  command  necessary  and  proper  assistance  in  apprehending 
criminals.  A  deputy-sheriff  is  authorized  to  make  arrestg.  In  1  Bish. 
on  Crim.  Pro.,  §  185,  the  author  says:  "The  officer,  then,  in  making  an 
arrest,  or  in  securing  his  prisoner  afterward,  may,  if  he  deems  it  neces- 
sary, call  upon  a  bystander  for  help,  or  even  command  the  aid  of  all 
persons  in  his  precinct,  and  equally  whether  he  is  acting  under  a  war- 
rant or  without.  A  refusal  to  assist  him  is  indictable,  pro\-ided  he  is 
proceeding  by  lawful  authority;  or,  if  he  is  not,  his  command  will  be  a 
justification  to  one  who,  knowing  his  official  character,  comes  in  good 
faith  to  his  assistance." 

The  power  of  the  officer  to  command  assistance,  when  necessary, 
is  essential  to  the  due  execution  of  the  criminal  law,  and  to  the  protec- 
tion of  society.  This  power,  which  extends  to  calling  to  his  aid  the 
posse  comitatics,  oftentimes  would  be  unavailing,  especially  in  emer- 
gencies requiring  prompt  action  and  assistance,  if  the  person  summoned 

1  See,  however,  Firestone  v.  Rice,  71  Mich.  377.  —  Ed. 


812  COMMONWEALTH   V.  CEOTTY.  [CHAP.  V. 

was  required  to  examine  the  papers  of  the  officer,  and  determine  his 
authority  to  make  the  particular  arrest  —  whether  it  would  be  safe  to 
assist  him.  The  officer  is  empowered  hy  the  statute  to  determine  the 
necessity  and  time  of  assistance,  and  prompt  obedience  is  the  duty  of 
the  person  summoned  or  commanded.  The  necessity  does  not  admit 
of  delay.  The  officer,  if  acting  without  warrant,  may  be  a  trespasser; 
but  the  private  person  may  rely  upon  his  known  official  character 
and  his  call  for  aid,  and  will  be  protected  in  doing  what  he  is  not  at 
liberty  to  refuse  or  neglect.  It  is  sufficient  if  the  general  official 
authority  of  the  person,  calling  for  aid,  to  make  arrests,  is  known. 
When  his  general  power  is  known,  his  call  will  justify  the  citizen  in 
yielding  obedience,  unless  he  has  notice  of  the  want  of  authority  in  the 
particular  case  in  which  assistance  is  required.  It  would  be  a  strange 
legal  anomaly,  to  punish  a  citizen  for  obeying  the  command  of  an  officer 
invested  with  lawful  authority  to  command  in  the  matter,  and  at  the 
same  time  subject  him  to  punishment  if  he  refuses  or  neglects  to 
obey.  The  duty  is  not  devolved,  to  inquire  whether  the  officer  has  a 
process  authorizing  the  arrest,  or  into  the  legality  of  the  process. 
McMahon  v.  Green,  34  Vt.  69;  Reed  v.  Rice,  2  J.  J.  Mar.  44. 

Several  of  the  rulings  of  the  court  conffict  with  the  rule  herein 
declared.    It  is  unnecessary  to  specify  them. 

Reversed  and  remanded. 


COMMONWEALTH  v.   CROTTY. 
Supreme  Judicial  Court  of  Massachusetts,  1865. 

[Reported  10  All.  403.] 

BiGELOW,  C.  J.  We  cannot  entertain  a  doubt  that  the  warrant 
on  which  the  officer  attempted  to  arrest  one  of  the  defendants  at  the 
time  of  the  alleged  riot  was  insufficient,  illegal,  and  void.  It  did  not 
contain  the  name  of  the  defendant,  nor  any  description  or  designation 
by  which  he  could  be  known  and  identified  as  the  person  against  whom 
it  was  issued.  It  was  in  effect  a  general  warrant,  upon  which  any  other 
individual  might  as  well  have  been  arrested,  as  being  included  in  the 
description,  as  the  defendant  himself.  Such  a  warrant  was  contrary 
to  elementary  principles,  and  in  direct  violation  of  the  constitutional 
right  of  the  citizen,  as  set  forth  in  the  Declaration  of  Rights,  article  14, 
which  declares  that  every  subject  has  a  right  to  be  secure  from  all 
unreasonable  searches  and  seizures  of  his  person,  and  that  all  war- 
rants, therefore,  are  contrary  to  this  right,  if  the  order  in  the  warrant 
to  a  civil  officer  to  arrest  one  or  more  suspected  persons  or  to  seize  their 
property  be  not  accompanied  with  a  special  designation  of  the  persons 
or  objects  of  search,  arrest,  or  seizure.    This  is  in  fact  only  a  declaration 


SECT.  VI.]  CHASE   V.    INGALLS.  813 

of  an  ancient  common  law  right.  It  was  always  necessary  to  express 
the  name  or  give  some  description  of  a  party  to  be  arrested  on  a  war- 
rant; and  if  one  was  granted  with  the  name  in  blank,  and  without  other 
designation  of  the  person  to  be  arrested,  it  was  void.,  1  Hale,  P.  C, 
577.  2  lb.,  119.  Foster,  312.  7  Dane  Ab.,  248.  1  Chit.  Crim.  Law, 
39.    Mead  v.  Haws,  7  Cow.  332,  and  cases  cited. 

This  rule  or  principle  does  not  prevent  the  issue  and  service  of  a 
warrant  against  a  party  whose  name  is  unknown.  In  such  case  the 
^best  description  possible  of  the  person  to  be  arrested  is  to  be  given  in 
the  warrant;  but  it  must  be  sufficient  to  indicate  clearlj'  on  whom  it  is 
to  be  served,  by  stating  his  occupation,  his  personal  appearance  and 
peculiarities,  the  place  of  his  residence,  or  other  circumstances  by 
M'hich  he  can  be  identified.     1  Chit.  Crim.  Law,  39,  40. 

The  warrant  being  defective  and  void  on  its  face,  the  officer  had  no 
right  to  arrest  the  person  on  whom  he  attempted  to  serve  it.  He  acted 
without  warrant  and  was  a  trespasser.  The  defendant  whom  he  sought 
to  arrest  had  a  right  to  resist  by  force,  using  no  more  than  was 
necessary  to  resist  the  unlawful  acts  of  the  officer.  An  officer  who  acts 
under  a  void  precept,  and  a  person  doing  the  same"act  who  is  notrair 
officer,  stand  on  the  same  footing.  Shadgett  v.  Clipson,  8  East,  328; 
Rex  V.  Hood,  1  Mood.  C.  C.  281;  Hoye  r.  Bush,  2  Scott  N.  R.  86; 
Pearce  v.  Atwood,  13  Mass.  324,  344;  Sanford  v.  Nichols,  lb.  286; 
Commonwealth  v.  Kennard,  8  Pick.  133;  and  any  third  person  may 
lawfully  interfere  to  prevent  an  arrest  under  a  void  warrant,  doing 
no  more  than  is  necessary  for  that  purpose.  1  Chit.  Crim.  Law,  44. 
The  King  v.  Osmer,  5  East,  304-308. 

The  defendants,  therefore,  in  resisting  the  officer  in  making  an  ar- 
rest under  the  warrant  in  question,  if  they  were  guilty  of  no  improper 
or  excessive  force  or  violence,  did  not  do  an  unlawful  act  by  lawful 
means,  or  a  lawful  act  by  unlawful  means,  and  so  could  not  be  con- 
victed of  the  misdemeanor  of  a  riot,  with  which  they  are  charged  in 
the  indictment. 

The  instructions  under  which  the  case  was  submitted  to  the  jury 
did  not  meet  this  aspect  of  the  case.  It  must  therefore  go  to  a  new 
trial. 

Exceptions  sustained. 


CHASE  V.   INGALLS. 
Supreme  Judicial  Court  of  Massachusetts,  1867. 

[Reported  97  Mass.  524.] 

Wells,  J.  The  execution,  upon  which  the  plaintiff  was  arrested 
and  committed,  was  regular  in  form,  and  bore  the  affidavit  and  cer- 
tificate of  a  magistrate  as  provided  by  the  Gen.  Sts.  c.  124,  §  5.    Prima 


814  CHASE   V.   INGALLS.  [CHAP.  V. 

facie,  it  is  a  complete  defense  to  the  officers  acting  in  accordance  with 
its  directions.  The  defect  reHed  on  by  the  plaintiff  to  deprive  them  of 
its  protection  is  the  fact,  now  admitted,  that  the  magistrate  who  made 
the  certificate  was  the  attorney  of  record  of  the  party  in  whose  favor 
the  execution  issued. 

It  is  settled  law  that  an  officer  is  protected  by  his  precept,  if  the  court 
or  magistrate  had  authority  such  as  the  precept  assumes.  It  is  not 
his  duty  to  inquire  into  the  particular  facts  of  the  case,  if  the  general 
power  appear  and  the  process  be  regular.  He  cannot  be  affected  by 
any  irregularity  occurring  prior  to  the  issue  of  his  precept,  nor  by  the 
existence  of  any  fact  which  deprives  the  court  or  magistrate  of  juris- 
diction in  that  particular  case,  provided  the  defect  be  not  disclosed  by 
the  precept  itself,  nor  known  to  the  officer.  Even  if  the  defect  be  one 
which  renders  the  precept  void  in  its  operation  between  the  parties, 
or  for  the  transfer  of  property,  yet  it  will  not  subject  the  officer  to 
liability  as  a  trespasser.  See  Sandford  v.  Nichols,  13  Mass.  286, 
and  cases  cited  to  this  point  by  the  defendants. 

The  cases  relied  upon  by  the  plaintiff  do  not  support  any  doctrine 
inconsistent  with  this.  The  decision  in  Pierce  v.  Atwood,  13  Mass. 
324,  344,  is  put  ex-pressly  upon  the  ground  that  the  want  of  au- 
thority in  the  magistrate  appeared  from  the  warrant  itself.  In 
Fisher  v.  McGirr,  1  Gray,  45,  the  want  of  jurisdiction  arose  from 
the  very  character  of  the  proceeding,  which  the  warrant  disclosed. 
In  Piper  v.  Pearson,  2  Gray,  120,  the  officer  was  held  liable  be- 
cause his  warrant  did  not  show  affirmatively  an  apparent  juris- 
diction, there  being  none  in  fact,  and  the  burden  being  upon  him 
to  establish  his  justification. 

Where  the  proceeding  is,  in  its  nature,  one  in  which  the  magistrate 
has  no  right  to  exercise  the  authority  under  which  the  officer  assumes 
to  act,  he  is  held  responsible  although  acting  in  good  faith;  because  in 
such  case  the  want  of  authority  is  disclosed  upon  the  face  of  the  pre- 
cept. But  where  the  want  of  authority  arises  from  some  fact  that  is 
personal  to  the  magistrate,  or  peculiar  to  the  proceedings  in  the  partic- 
ular case,  the  precept  cannot  disclose  it,  and  the  officer  is  not  to  be 
held  liable  without  actual  knowledge  of  the  fact. 

The  plaintiff'  offered  no  e\ddence  to  show  that  the  defendants  had 
actual  knowledge  that  the  certifjdng  magistrate  was  disqualified; 
not  deeming  it  to  be  material  whether  they  knew  it  or  not;  and  the 
testimony  of  the  defendant  Ingalls,  as  reported,  would  not  warrant  the 
jury  in  finding  such  knowledge.  He  is  not  entitled  now  to  have  a  jury 
to  determine  that  question. 

Upon  another  ground  we  think  the  verdict  must  stand.  The  arrest 
was  in  accordance  with  the  authority  and  directions  of  the  precept. 
It  is  a  proper  mode  of  serving  an  execution,  unless  the  statute  (Gen. 
Sts.  c.  124,  §  5)  restricts  the  right.  The  restriction  applies  to  execu- 
tions "  issued  for  debt  or  damages  in  a  civil  action,  except  in  actions  of 


SECT.  VI.  J  POOLER   V.   REED,  815 

tort."  Perhaps  the  term  "civil  action"  might  be  held  to  embrace 
suits  for  divorce.  But  the  restriction  clearly  does  not  extend  to  all 
cases  that  might  be  termed  "civil  actions."  It  is  limited  to  such  only 
as  are  for  the  recovery  of  "debt  or  damages."  This  limitation,  and  the 
exception  of  "actions  or  tort,"  which  follows,  indicate  that  the  re- 
striction is  not  general,  and  was  not  intended  to  apply  to  such  war- 
rants of  the  court  as  may  issue  to  enforce  its  decrees  in  special  proceed- 
ings like  this  of  libel  for  divorce.  The  allowance  of  alimony,  or  the 
award  to  the  wife  of  her  own  or  a  part  of  the  husband's  estate  upon 
granting  a  divorce,  is  not  a  debt  nor  damages,  in  the  sense  of  the 
statute.  No  affidavit  and  certificate  of  a  magistrate  were  necessary; 
and  therefore  the  exceptions  must  be  overruled. 


POOLER  V.   REED. 
Supreme  Judicial  Court  of  Maine,  1882. 

[Reported  73  Me.  129.] 

LiBBEY,  J.  The  defendant  justifies  the  arrest  and  imprisonment  of 
the  plaintiff,  as  constable  of  Bangor,  having  a  legal  mittimus  therefor. 
He  thus  puts  directly  in  issue  his  legal  capacity  as  such  officer. 

His  appointment  to  and  acceptance  of  the  office  of  justice  of  the 
peace,  after  his  election  and  qualification  as  constable,  must  be  held 
to  be  a  surrender  of  the  office  of  constable.  Stubbs  v.  Lee,  64  Maine, 
195. 

He  was  an  officer  clc  facto  when  he  made  the  arrest,  and  while  acting 
as  such  officer,  his  acts  would  be  valid  as  to  third  parties;  and  as  be- 
tween them  his  title  to  the  office  could  not  be  tried;  but  when  he  is  a 
party  and  justifies  his  acts  as  such  officer,  he  must  show  that  he  has  a 
legal  title  to  the  office.  Stubbs  v.  Lee,  64  Maine,  195;  Fowler  v.  Bebee, 
9  Mass.  231;  Sheehan's  Case,  122  Mass.  445;  Green  v.  Burke,  23 
Wend.  490;  People  r.  Hopson,  1  Denio,  574;  Reddle  v.  Bedford,  7 
Serg.  &  R.  386;  Parker  v.  Luff  borough,  10  Serg.  &  R.  249;  Keyser  i'. 
McKissan,  2  Rawle,  139. 

In  accordance  with  the  agreement  of  the  parties, 

The  action  must  stand  for  trial. 

Appleton,  C.  J.,  Barrows,  Virgin,  Peters,  and  Symonds,  JJ., 
concurred. 


816  LOWENBERG   V.   ROSENTHAL.  [CHAP.  V. 


JEFFRIES  V.   HARGIS. 
Supreme  Court  of  Ark.\nsas,  1887. 

[Reported  50  Ark.  65.] 

CoCKRiLL,  C.  J.  This  is  an  action  of  trespass  brought  by  appellant 
against  the  appellee.  It  is  a  petty  controversy  about  the  damage  done 
to  a  piece  of  wild  land  by  entering  upon  it  and  cutting  and  carrying 
away  a  few  trees.  The  defendant  had  bought  the  right  to  cut  the  tim- 
ber from  a  tract  adjoining  the  plaintiff's,  and  through  an  apparent  mis- 
understanding as  to  where  the  dividing  line  lay,  entered  upon  the  land 
in  controvers3\  Counsel  upon  both  sides  have  confined  their  inquiries  to 
questions  arising  on  the  charge  to  the  jury  as  to  what  constitutes  a 
trespass,  and  what  evidence  was  competent  to  prove  the  boundary  line 
between  the  two  estates. ^  The  abstract  goes  no  farther,  and  we  do  not, 
therefore,  go  beyond  it.  .  .  . 

The  court  also  instructed  the  jury  that  if  the  defendant  crossed  the 
boundary  line  between  the  two  tracts,  through  mistake,  he  was  not 
guilty  of  trespass,  notwithstanding  he  cut  and  carried  away  the  trees. 
It  was  the  defendant's  duty  to  know  the  boundaries  of  his  own  land 
and  keep  within  them,  and  ignorance  thereof  would  not  justify  a  tres- 
pass upon  his  neighbor's  land. 

The  judgment  must  be  reversed  and  the  cause  remanded. 


LOWENBERG  v.  ROSENTHAL. 
Supreme  Court  of  Oregon,  1889. 

[Reported  18  Ore.  178.] 

Thayer,  C.  J.-  The  special  findings  established  the  fact  that  the 
appellants  took  and  carried  away  timber,  or  trees,  standing  or  being 
upon  the  respondents'  land,  to  the  amount  of  3,800  cords  of  wood,  of 
the  value  of  S380,  without  any  lawful  authority  for  taking  it,  although 
they  had  probable  cause  to  believe,  and  did  believe,  at  the  time  they 
carried  it  away,  that  the  owners  of  the  land  had  authorized  them  to 

*  The  opinion  upon  this  point  of  evidence  is  omitted.  —  Ed. 
^  Only  so  much  of  the  opinion  as  discusses  the  question  of  authority  is  here 
given.  —  Ed. 


SECT.   VI.]  SHORTER    V.    PEOPLE.  817 

do  SO.  These  facts,  as  a  matter  of  law,  clearly  created  a  liability  on 
the  part  of  the  appellants  for  the  value  of  the  wood.  The  appellants 
belie\ang,  and  having  probable  cause  to  believe,  that  the  owners  of 
the  land  had  authorized  them  to  take  the  wood,  did  not  lessen  their 
liability.  If  one  person  takes  and  carries  away  the  property  of  another 
without  law^^ul  authority  to  do  so,  he  becomes  liable  for  its  value,  what- 
ever his  belief  may  have  been  as  to  iiis  right  to  take  it.  To  authorize 
one  man  to  take  the  property  of  another,  he  must  have  had  the  Tatter's 
consent  to_take  it.  His  belief  in  his  right  to  take  it,  though  he  have 
reasonable  grounds  therefor,  will  not  be  a  sufficient  justification  for 
the  act. 


SHORTER   V.    PEOPLE. 
Court  op  Appeals  of  New  York.     1849. 

[Reported  2  Comstock,  193.] 

Henr}'  Shorter,  a  negro,  was  indicted  for  the  murder  of  Stephen  C. 
Brush,  and  tried  at  the  Erie  County  Oyer  and  Terminer  in  November, 
1848.1 

The  evidence  having  closed,  Justice  Hoyt,  presiding  at  the  trial, 
proceeded  to  charge  the  jur\'  at  large  upon  the  case,  and  having  done 
so,  the  counsel  for  the  prisoner  requested  the  court  to  charge  that  if 
the  deceased  struck  the  first  blow,  and  if  there  was  reasonable  ground 
to  apprehend  a  design  on  the  part  of  the  deceased  to  do  the  prisoner 
some  great  personal  injury,  and  the  prisoner  believed  that  there  was 
imminent  danger  of  such  design  being  accomplished,  it  was  a  case  of 
justifiable  homicide,  although  he  might  be  mistaken  in  such  belief;  and 
that  the  question  was  not  whether  such  danger  existed,  but  whether 
the  prisoner  believed  it  to  exist.  The  court  refused  so  to  charge,  but 
on  the  contrar}'  charged  that  to  render  the  killing  justifiable  the  jur}" 
should  be  satisfied  that  there  was  in  fact  imminent  danger  that  the 
deceased  would  commit  some  great  personal  injury  upon  the  prisoner. 
The  prisoner's  counsel  excepted  to  this  part  of  the  charge  and  to  the 
refusal  to  charge  as  requested.  The  jur}'  found  the  prisoner  guilty  of 
murder.  A  bill  of  exceptions  was  made  and  the  case  removed  by  cer- 
tiorari into  the  Supreme  Court,  where  a  new  trial  was  refused.  The 
prisoner  brought  error  to  this  court. 

Bronson,  J.  Wlien  one  who  is  without  fault  himself  is  attacked 
by  another  in  such  a  manner  or  under  such  circumstances  as  to  furnisli 
reasonable  ground  for  apprehending  a  design  to  take  away  his  life,  or 
do  him  some  great  bodily  harm,  and  there  is  reasonable  ground  for 

^  The  evidence,  arguments,  and  part  of  the  opinion  are  omitted. 


818  SHOETER   V.   PEOPLE.  [CHAP.  V. 

believing  the  danger  imminent  that  such  design  will  be  accomplished, 
I  think  he  ma}'  safel}'  act  upon  appearances,  and  kill  the  assailant,  if 
that  be  necessary  to  avoid  the  apprehended  danger ;  and  the  killing 
will  be  justifiable,  although  it  may  afterwards  turn  out  that  the  appear- 
ances were  false,  and  there  was  in  fact  neither  design  to  do  him 
serious  injury,  nor  danger  that  it  would  be  done.  He  must  decide  at 
liis  peril  upon  the  force  of  the  circumstances  in  which  he  is  placed,  for 
that  is  a  matter  which  will  be  subject  to  judicial  review.  But  he  will 
not  act  at  the  peril  of  making  that  guilt,  if  appearances  prove  false, 
which  would  be  innocence  had  they  proved  true.  I  cannot  better 
illustrate  m}-  meaning  than  by  taking  the  case  put  by  Judge,  afterwards 
Chief  Justice  Parker,  of  Massachusetts,  on  the  trial  of  Thomas  O. 
Selfridge.  "  A.  in  the  peaceable  pursuit  of  his  atfairs  sees  B.  walking 
rapidly  towards  him  with  an  outstretched  arm  and  a  pistol  in  his  hand, 
and  using  violent  menaces  against  his  life  as  he  advances.  Having 
approached  near  enough  in  the  same  attitude,  A.  who  has  a  club  in 
his  hand,  strikes  B.  over  the  head,  before,  or  at  the  instant  the  pistol 
is  discharged  ;  and  of  the  wound  B.  dies.  It  turns  out  that  the  pistol 
was  loaded  with  powder  only,  and  that  the  real  design  of  B.  was  only 
to  terrify  A."  Upon  this  case  the  judge  inquires,  "  Will  any  reasonable 
man  say  that  A.  is  more  criminal  than  he  would  have  been  if  there 
had  been  a  bullet  in  the  pistol?  Those  who  hold  such  doctrine  must 
require  that  a  man  so  attacked  must,  before  he  strikes  the  assailant, 
stop  and  ascertain  how  the  pistol  was  loaded,  —  a  doctrine  which  would 
entirel}'  take  away  the  right  of  self  defence.  And  when  it  is  considered 
that  the  jury  who  tr^-  the  cause,  and  not  the  party  killing,  are  to  judge 
of  the  reasonable  grounds  of  his  apprehension^  no  danger  can  be  sup- 
posed to  flow  from  this  principle."  The  judge  had  before  instructed 
the  jur}'  that,  "when  from  the  nature  of  the  attack  there  is  reasonable 
ground  to  believe  that  there  is  a  design  to  destroy  his  life,  or  commit 
any  felony  upon  his  person,  the  killing  of  the  assailant  will  be  excus- 
able homicide,  although  it  should  afterwards  appear  that  no  felony  was 
intended,"  Selfridge's  Trial,  p.  IGO;  1  Russ.  on  Crime,  699,  ed.  of 
'24;  p.  485,  note,  ed.  of  '36.  To  this  doctrine  I  fully  subscribe.  A 
different  rule  would  lay  too  heavy  a  burden  upon  poor  humanity. 

I  have  stated  the  case  of  Selfridge  the  more  fully,  because  it  is  not 
only  an  authorit}'  in  point,  but  it  is  one  which  the  revisers  professed 
to  follow  in  framing  our  statute  touching  this  question. 

I  shall  not  stop  to  consider  the  common  law  distinctions  between 
justifiable  and  excusable  homicide,  because  our  statute  has  placed  kill- 
ing in  self  defence  under  the  head  of  justifiable  homicide.  2  R.  S.  660, 
s.  3. 

The  Massachusetts  case  lays  down  no  new  doctrine.  The  same 
principle  was  acted  on  in  Levett's  Case.^  Foster  (Crown  Law,  p. 
299)  says  of  this  case,  "  Possiblj^  it  might  have  been  better  ruled  man- 

^  The  learned  judge  here  stated  Levett's  Case,  ante.  —  Ed. 


SECT.  VI.]  SHORTER  V.    PEOPLE.  819 

slaughter  at  common  law,  due  circumspection  not  having  been  used." 
I  do  not  understand  him  as  questioning  the  principle  of  the  decision, 
but  as  only  expressing  a  doubt  whether  the  principle  was  properly 
applied.  He  calls  it  nothing  more  than  a  case  of  manslaughter,  when, 
if  a  man  may  not  act  upon  appearances,  it  was  a  plain  case  of  murder. 
So  far  as  I  have  observed,  no  other  writer  upon  criminal  law  has  ques- 
tioned, in  any  degree,  the  decision  in  Levett's  Case  ;  and  most  of  them 
have  fully  approved  it.  East,  in  his  Pleas  of  the  Crown  (vol.  i.  p. 
274,  375),  has  done  so.  Hale  (1  P.  C.  42,  474)  mentions  it  among 
cases  where  ignorance  of  the  fact  will  excuse  from  all  blame.  Haw- 
kins (1  P.  C.  84,  Curwood's  ed.)  says  the  killing  had  not  the  appear- 
ance of  a  fault.  Russell  (on  Crimes,  vol.  i.  p.  550,  ed.  of  1836) 
approves  the  decision,  which  he  introduces  with  the  remark  that 
"  important  considerations  will  arise  in  cases  of  this  kind  [he  was 
speaking  of  homicide  in  defence  of  one's  person,  habitation,  or  prop- 
ertj']  as  to  the  grounds  whi<'h  the  part}'  killing  had  for  supposing  that 
the  person  slain  had  a  felonious  design  against  him  ;  more  especially 
where  it  afterwards  appears  that  no  such  design  existed."  Roscoe, 
(Crim.  Ev.  p.  639)  says,  "It  is  not  essential  that  an  actual  felon}' 
should  be  about  to  be  committed  in  order  to  justify  the  killing.  If 
the  circumstances  are  such  as  that,  after  all  reasonable  caution,  the 
party  suspects  that  the  felony  is  about  to  be  immediately^  committed, 
he  will  be  justified."  And  he  then  gives  Levett's  Case  as  an  example. 
The  case  of  Sir  William  Hawksworth,  who,  through  his  own  fault, 
was  shot  by  the  keeper  of  his  park,  who  took  him  for  a  stranger  who 
had  come  to  destroy  the  deer,  went  upon  the  same  principle.  1  Hale's 
P.  C.  40 ;  1  East,  P.  C.  275 ;  1  Russ.  on  Cr.  549.  Other  cases  are 
put  in  the  books  where  the  killing  will  be  justified  b}'  appearances, 
though  they  afterwards  prove  false.  A  general,  to  try  the  vigilance  or 
courage  of  his  sentinel,  comes  upon  the  sentinel  in  the  night  in  the 
posture  of  an  enemy,  and  is  killed.  There  the  ignorance  of  the  sen- 
tinel that  it  was  his  general,  and  not  an  eneni}',  will  justify  the  killing. 
1  Hale's  P.  C.  42  ;  1  East,  P.  C.  275  ;  1  Russ.  540.  The  case  men- 
tioned by  Lord  Hale,  which  was  before  him  at  Peterborough,  where  a 
servant  killed  his  master,  supposing  he  was  shooting  at  deer  in  the 
corn  in  obedience  to  his  master's  orders,  belongs  to  the  same  class. 
1  Hale's  P.  C.  40,  476 ;  1  Russ.  540.  In  Rampton's  Case  (Kelyng 
Rep.  41)  the  defendant  killed  his  wife  with  a  pistol  which  he  had 
found  in  the  street,  after  ascertaining,  as  he  supposed,  by  a  trial  with 
the  ramrod,  that  it  was  not  loaded,  though  in  fact  it  was  charged  with 
two  bullets.  This  was  adjudged  to  be  manslaughter,  and  not  merely 
misadventure.  Foster  (Crown  Law,  263,  4)  calls  this  a  hard  case, 
and  thinks  the  man  should  have  been  wholly  acquitted,  x^n  the  ground 
that  he  exercised  due  caution,  —  the  utmost  caution  not  being  neces- 
sary in  such  cases.  But  if  the  decision  was  right,  as  I  am  inclined  to 
think  it  was,  for  the  want  of  proper  caution,  still  the  case  goes  on  the 
ground  that  the  degree  of  guilt  may  be  affected  by  appearaaces  which 


820  SHORTER   V.    PEOPLE.  [CHAP.    V. 

afterwards  prove  false ;  for  if  he  liad  not  tried  the  pistol,  it  would 
have  been  murder.  Foster  (p.  265)  mentions  a  case  which  was  tritnJ 
before  him,  where  the  prisonet  had  shot  his  wife  with  a  gun,  which  he 
supposed  was  not  loaded.  The  judge,  being  of  opinion  that  the  pris- 
oner had  reasonable  ground  to  believe  that  the  gun  was  not  loaded, 
directed  the  jury,  that  if  the}'  were  of  the  same  opinion,  tliey  should 
acquit  the  prisoner ;  and  he  was  acquitted.  In  Meade's  Case  (1 
Le win's  Cr.  Cas.  184)  the  prisoner  had  killed  with  a  pistol  one  of  a 
great  number  of  persons  who  came  about  his  house  in  the  night  time, 
singing  songs  of  menace,  and  using  violent  language.  Holroyd,  J., 
told  the  jur}'  that  if  there  was  nothing  but  the  song,  and  no  appear- 
ance of  violence,  if  they  believed  there  was  no  reasonable  ground  for 
apprehending  danger,  the  killing  was  murder.  And»  in  The  People 
V.  Rector  (19  Wend.  569)  Cowen,  J.,  said  alarm  on  the  part  of 
the  prisoner,  07i  apparent  though  unreal  grounds,  was  pertinent  to 
the  issue.  In  The  U.  S.  v.  Wiltberger  (3  Wash.  C.  C.  515,  521)  the 
judge  told  the  jury  that,  for  the  purpose  of  justifying  the  kiUing,  the 
intent  of  the  deceased  to  commit  a  felon}'  must  be  apparent,  which 
would  be  sufficient,  although  it  should  afterwards  turn  out  that  the 
real  intention  was  less  criminal,  or  even  innocent.  He  afterwards 
added  that  the  danger  must  be  imminent,  —  meaning,  undoubtedly, 
that  it  must  wear  that  appearance.  The  State  v.  Wells  (1  Coxe  N.  J. 
Rep.  424)  is  entirely  consistent  with  this  doctrine.  The  Supreme 
Court  of  Tennessee  has  gone  still  further,  and  held  that  one  who  kills 
another,  believing  himself  in  danger  of  great  bodily  harm,  will  be  jus- 
tified, although  he  acted  from  cowardice,  and  without  any  sufficient 
ground,  in  the  appearances,  for  the  killing.  Grainger  v.  The  State, 
5  Yerger,  459.  This  was,  I  think,  going  too  far.  It  is  not  enough 
that  the  party  believed  himself  in  danger,  unless  the  facts  and  circum- 
stances were  such  that  the  jury  can  say  he  had  reasonable  grounds  for 
his  belief. 

We  have  been  referred  to  two  cases  where  it  was  said,  in  substance, 
that  the  killing  must  be  necessary  :  Regina  v.  Smith,  8  Car.  &  Pay. 
160,  and  Regina  v.  Bull,  9  id.  22;  and  other  authorities  to  the  same 
effect  might  have  been  cited.  The  life  of  a  human  being  must  not  be 
taken  upon  slight  grounds ;  there  must  be  a  necessity,  either  actual  or 
apparent,  for  the  killing,  or  it  cannot  be  justified.  That,  I  think,  is 
all  that  was  meant  by  such  remarks  as  have  been  mentioned.  The 
unqualified  language  that  the  killing  must  be  necessary  has,  I  think, 
never  been  used  when  attention  was  directed  to  the  question  whether 
the  accused  might  not  safely  act  upon  the  facts  and  circumstances  as 
they  were  presented  at  the  time.  I  have  met  with  no  authority  for 
saying,  that  a  homicide  which  would  be  justifiable  had  appearances 
proved  trae,  will  be  criminal  when  they  prove  false. 


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